G.  R Edmunds 


Fourteeo+b  Amendment 


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MAY  27 


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LIBRARY  Y’ 

OF  THE 

UNIVERSITY  OF  ILLINOIS 

Enforcement  of  Fourteenth  Amendment. 


SPEECH 

OF 

HON.  GEORGE  E.  EDMUNDS, 

OF  VERMONT, 


IN  THE  SENATE  OF  THE  UNITED  STATES,  APRIL  14,  1871. 


The  Senate,  as  in  Committee  of  the  Whole,  hav- 
ing under  consideration  the  bill  (II.  It.  No.  320)  to 
enforce  the  provisions  of  the  fourteenth  amendment 
to  the  Constitution  of  the  United  States,  and  for 
other  purposes — 

Mr.  EDMUNDS  said: 

Mr.  President:  I am  sorry  that,  in  order 


to  be  specific  in  arguments  about  the  Consti- 
tution and  the  law,  one  is  obliged  to  be  dull. 
If  one  only  had  the  genius  and  the  enthu- 
siasm of  those  of  our  friends  and  our  ene- 
mies both — I do  not  care  to  be  specific — who 
are  willing  to  oppose  legislation  upon  the 
imagination  and  upon  rhetoric,  then  certainly 
I should  not  attempt  to  make  any  speech  at 
all.  But  inasmuch  as  this  is  an  important 
public  question,  which  involves,  as  Senators 
have  said,  delicate  responsibilities  between  the 
States  and  the  national  Government,  I think 
it  right  that  we  should  examine  a little  in  de- 
tail precisely  what  sort  of  a Government  we 
have  and  precisely  what  its  rights  are  ; and  if 
it  shall  turn  out  on  such  an  examination  that 
the  bill  which  we  have  proposed  is  within  the 
clear  scone  of  constitutional  authority,  and  is 
of  legislative  precedent, 
preservation  of  private 
>e  that  even  our  Demo- 
illing  to  agree  that  the 
committed,  and  which 
\ that  other  and  greater 
ae  tribunals  and  com- 
occur  of  being  suffered 
11  be  reached  by  every 
ation.  They  certainly 
if  crimes  such  as  have 
d are  unrepressed  by 
thorities,  every  measure 
islation  which  will  have 
rve  life  and  liberty  aud 
o be  resorted  to. 

Mr.  President,  with  the 
d by  the  honorable  Senator 
sits  farthest  from  me  [Mr. 


Blair]  the  other  day,  not  entirely  with  his 
unlimited  statement  of  it,  but  with  the  senti- 
ment that — 

“The  Government  certainly  owed  protection  to 
the  Union  men  of  the  South,  precisely  and  in  the 
same  proportion  as  the  people  of  the  South  owed 
allegiance  to  the  Government.  As  I remarked  the 
other  day.  the  duty  of  protection  on  the  part  of  the 
Government  and  the  duty  of  allegiance  on  the  part 
of  the  citizen  arc  reciprocal  duties— the  one  is  the 
consideration  for  the  other.  If  one  fails  in  his  duty 
be  has  no  right  to  exact  the  performance  of  the 
other.  If  the  Government  failed  to  protect  its  citi- 
zens, it  could  not  require  the  allegiance  of  its  citi- 
zens. If  it  refused  to  make  an  effort  toi>rotect  them, 
it  had  still  less  ground  to  require  its  citizens  to  yield 
their  allegiance.” 

That,  Mr.  President,  is  sound  doctrine,  with 
the  qualification  that  the  duty  of  the  Govern- 
ment to  protect  its  citizens  is  not  absolute  in 
the  final  sense;  its  duty  to  protect  is  that  it 
will  exhaust  all  the  resources  of  its  power,  by 
diligent  and  faithful  and  vigorous  effort  to 
preserve  the  liberties  and  the  rights  of  its  citi- 
zens; and  when  it  has  done  that  it  has  per- 
formed the  full  function  of  government,  and 
when  it  has  refused  to  do  that  it  has  failed, 
and  is  not  entitled  to  be  called  a complete  or 
just  Government  at  all;  and  it  ought  to  be 
put  down  by  revolution  or  otherwise. 

Now,  sir,  if  the  people  of  these  southern 
States,  whose  case  is  what  you  know  and  what 
all  the  people  know,  are  not  protected  to  the 
uttermost  bound  of  the  power  of  the  nation 
whose-citizens  they  are — the  uttermost  bound 
I mean  of  course  of  its  constitutional  power — 
then,  on  the  principle  of  the  honorable  Senator 
from  Missouri,  and  the  true  principle,  we  have 
absolved  them  from  allegiance  to  us  ; they  owe 
us  no  duty  of  obedience  to  law,  and  they  are 
remitted  to  themselves  to  protect  themselves  as 
best  they  may.  Do  Senators  wish  to  reach 
that  conclusion  ? Do  Senators  wish  to  meet 
inayearortwo  that  event?  Is  my  honorable 
friend  from  California  [Mr.  Casserly]  so 
desirous  to  foment  a war  of  races,  which  will 
supely  come  at  last,  as  vengeance  always  fol- 


2 


lows  crime  in  some  way,  as  to  view,  with  indif 
ference  such  a possibility  ; or  is  he  willing,  if 
he  constitutionally  may,  to  interpose  the  calm 
force  of  law,  through  the  judiciary,  aided  by 
the  lawful  executive  power  of  the  nation,  to 
punish  crime  and  uphold  order?  That  is  the 
question  that  he  will  have  to  face,  and  that  is 
the  only  question. 

We  have  been  told,  Mr.  President,  a good 
many  times,  and  for  a good  many  years,  that 
this  national  Government  of  ours  is,  after  all, 
not  a Government  of  the  people,  but  that  it  is 
merely  a confederated  Government  of  States, 
and  that  wherever  and  whenever  the  national 
authority  undertakes  to  appeal  to  a citizen 
either  to  do  or  omit  to  do  a thing,  it  transcends 
its  authority ; that  all  the  rights  and  duties  of 
a citizen  are  infolded  in  his  State  constitution, 
and  that  we  therefore,  under  the  recent  amend- 
ments or  under  the  old  Constitution,  must  act 
only  upon  that  political  body  called  the  State, 
as  we  would  act  in  the  case  of  our  relations 
with  a foreign  Power.  This  was  the  doctrine 
of  the  Democratic  party  before  the  rebellion; 
it  was  a doctrine  common  to  it  and  the  powers 
of  the  rebellion  during  the  war,  and  it  has  been 
so  since.  Sir,  that  is  a mistake.  It  is  a mis 
take  which  led  to  the  rebellion  ; it  is  a mistake 
which  has  led  to  the  fruits  of  that  rebellion 
which  we  are  now  reaping  in  the  last  and 
basest  form  which  the  spirit  that  produced 
the  rebellion  can  possibly  assume. 

The  honorable  Senators  over  the  way  have 
thought  fit  to  read  from  those  excellent  com- 
mentaries upon  the  strength  and  stress  of 
which  the  people  of  the  United  States,  through 
their  States,  adopted  this  Constitution,  to  show 
what  was  the  nature  of  this  Government.  So 
will  I.  Mr.  Hamilton,  in  these  publications, 
which  were  put  forth,  as  I say,  when  this  Con- 
stitution was  about  to  be  adopted,  and  when, 
as  my  friend  from  Wisconsin  [Mr.  Carpenter] 
so  properly  suggests,  the  temptation  was  en- 
tirely to  diminish  and  belittle  thq  powers  of 
the  Government — Mr.  Hamilton,  speaking 
of  the  difficulties  between  independent  States 
and  of  the  difficulties  in  the  relations  of  the 
national  Government  to  the  States  under  the 
Confederation,  says: 

“ But  if  we  are  unwilling  to  be  placed  in  this  peril- 
ous situation ; if  we  still  will  adhere  to  the  design 
of  a national  government,  or,  which  is  the  same 
thing,  of  a superintending  power,  under  the  direc- 
tion of  a common  council,  we  must  resolve  to  incor- 
porate into  our  plan  those  ingredients  which  may  be 
considered  as  forming  the  characteristic  difference 
between  a league  aud  a government,  we  iftust  ex- 
tend the  authority  of  the  Union  to  the  persons  of 
the  citizens,  the  only  proper  objects  of  government. 

“ Government  implies  the  power  of  making  laws. 
It  is  essential  to  the  idea  of  a law  that  it  be  attended 
with  a sanction,  or,  in  other  words,  a penalty  or 
punishment  for  disobedience.  If  there  be  no  pen- 
alty annexed  to  disobedience,  the  resolutions  or 
commands  which  pretend  to  be  laws  will  in  fact 
amount  to  nothing  more  than  advice  or  recom- 
mendation.” 

Which  is  the  redress  and  remedy  our  honor- 
able friends  desire  to  give  to  this  existing  evil, 
and  which  I see  from  the  debates  in  the  House 
they  are  to  do  by  a sort  of  encyclical  letter  to 


their  friends  whose  excesses  giveth§m  so  much 
cause  for  mortification. 

“This  penalty,  whatever  it  may  be,  can  only  be 
inflicted  in  two  ways:  by  the  agency  of  the  courts 
and  ministers  of  justice,  or  by  military  force;  by  the 
coercion  of  the  magistracy,  or  by  the  coercion  of 
a'ins.  The  first  kind  can  evidently  apply  only  to 
men  ; the  last  kind  must,  of  necessity,  be  employed 
against  bodies-politic,  or  communities,  or  States.  It 
is  evident  that  there  is  no  process  of  a court  by 
which  the  observance  of  the  laws  can,  in  the  last 
resort.be  enforced.  Sentences  may  be  denounced 
against  them  for  violations  of  their  duty,  but  these 
sentences  can  only  be  carried  into  execution  by  the 
sword.” 


That,  sir,  is  precisely  the  principle  upon 
which  this  bill  is  framed.  It  does  not  seek 
by  military  power  to  invade  any  State,  or  the 
right  of  any  State  or  any  man  ; it  seeks  to 
denounce,  by  a declaration  of  what  shall  be  a 
crime,  an  unconstitutional  act;  and  it  endeav- 
ors to  enforce  the  penalty  imposed  upon  that 
by  the  proper  intervention  of  the  judiciary ; 
and  then  it  proceeds  to  lend  the  strong  arm  of 
the  nation  to  the  assistance  of  that  judiciary. 
But  he  proceeds  and  says  again  : 

“ The  result  of  these  observations  to  an  intelligent 
mind  must  be  clearly  this,  that  if  it  be  possible  at 
any  rate  to  construct  a federal  government  capable 
of  regulating  the  common  concerns  and  preserving 
the  general  tranquillity,  it  must  be  founded,  as  to 
the  objects  committed  to  its  care,  upon  the  reverse 
of  the  principle  contended  for  by  the  opponents  of 
the  proposed  constitution.  It  must  carry  its  agency 
of  the  persons  of  the  citizens.  It  must  stand  in  need 
of  no  intermediate  legislation,  but  must  itself  be  em- 
powered to  employ  the  arm  of  the  ordinary  magis- 
trate to  execute  its  own  resolutions.  The  majesty 
of  the  national  authority  must  be  manifested  through 
the  medium  of  the  courts  of  justice.  The  Govern- 
ment of  the  Union,  like  that  of  each  State,  must  be 
able  to  address  itself  immediately  to  the  hopes  and 
fears  of  individuals,  and  to  attract  to  its  support 
those  passions  which  have  the  strongest  influence 
upon  the  human  heart.  It  must,  in  short,  possess 
all  the  means,  and  have  a right  to  resort  to  all  the 
methods  of  executing  the  powers  with  which  it  is 
intrusted,  that  are  possessed  and  exercised  by  the 
governments  of  the  particular  States.” 


This  was  the  construction  of  the  Constitu- 
tion's it  was  by  him  who  largely  participated 
in  the  framing  of  it,  by  him  whose  counsels 
alone,  through  the  publications  embodied  in 
this  book,  gave  us  the  Constitution  at  all..  To 
exercise  these  high  duties  is  not,  asjthe  honor- 
able Senator  from  Illinois 
complained,  to  “ enter 
tor  on  the  other  side 
but  it  is  to  obey  the  w 
expressed  in  the 
Government  never  ei 
State.  It  is  always 
State  already.  It  is 
administered  by  the 
Government  it  is. 

This  is  not  all  as  to 
ernment.  It  is  a 
on  the  other  sid^ 
this  time,  of  se 
those  is  the  departm 
whose  judgments,  when 
they  advise  us  with 
and  we  always  do. 
of  the  great  tribunal  w 
pronounce  upon  constitut 


3 


as  they  affect  the  relations  of  persons  to  the 
Government  and  the  relations  of  all  private 
rights.  Says  Mr.  Justice  Story,  in  the  case  of 
Martin  vs.  Hunter,  in  1 Wheaton  : 

“The  Constitution  of  the  United  States  was  or- 
dained and  established,  not  by  the  States  in  their 
sovereign  capacities,  but  emphatically,  as  the  pre- 
amble of  the  Constitution  declares,  by  ‘the  people 
of  the  United  States.’  There  can  be  no  doubt  that 
it  was  competent  to  the  people  to  invest  the  General 
Government  with  all  the  powers  which  they  might 
deem  proper  and  necessary;  to  extend  or  restrain 
these  powers  according  to  their  own  good  pleasure, 
and  to  give  them  a paramount  and  supreme  author- 
ity.” ********* 

“ It  did  notsuit  the  purposes  of  the  people  in  fram- 
ing this  great  charter  of  our  liberties  to  provide  for 
minute  specifications  of  its  powers,  or  to  declare  the 
means  by  which  those  powers  should  be  carried  into 
execution.  It  was  foreseen  that  this  would  be  a per- 
ilous and  difficult,  if  not  an  impracticable  task.  The 
instrument  was  not  intended  to  provide  merely  for 
the  exigencies  of  a few  years. .but  was  to  endure 
through  a long  lapse  of  ages,  the  events  of  which 
were  locked  up  in  the  inscrutable  purposes  of  Prov- 
idence. It  could  not  be  foreseen  what  new  changes 
and  modifications  of  power  might  be  indispensable 
to  effectuate  the  general  objects  of  the'charter ; and 
restrictions  and  specifications,  which,  at  the  present, 
might  seem  salutary,  might,  in  the  end,  prove  the 
overthrow' of  the  system  itself.  Hence  its  powers  are 
expressed  in  general  terms,  leaving  to  the  Legisla- 
ture, from  time  to  time,  to  adopt  its  own  means  to 
effectuate  legitimate  objects,  and  to  mold  and  model 
the  exercise  of  its  powers,  as  its  own  wisdom  and  the 
public  interests  should  require.” 

Now,  sir,  what  were  these  general  objects  to 
which  this  learned  judge  refers  in  deciding  this 
cause  ? They  are  stated,  as  he  has  said,  in  the 
preamble  of  this  instrument.  Let  us  hear  them. 
They  seem  to  have  been  forgotten  or  over- 
looked— some  time  they  must  have  been  read — 
by  the  honorable  gentlemen  who  have  opposed 
this  bill : 

“We,  the  people  of  the  United  States,  in  order  to 
form  a more  perfect  Union,  to  establish  justice”— 
which  I believe  is  rendering  to  every  man  his 
due — 


case  of  Cohens  us.  Virginia,  undertook  to 
enumerate  the  conditions  under  which  the  Gov- 
ernment was  formed,  and  the  conditions  under 
which  aldne  it  could  succeed.  He  says  : 

“ If  it  could  be  doubted  whether,  from  its  nature, 
it  were  not  supreme  in  all  cases  where  it  is  empow- 
ered to  act,  that  doubt  would  be  removed  by  the 
declaration  that  ‘this  Constitution,  and  the  laws  of 
the  United  States  which  shall  be  made  in  pursuance 
thereof,  and  all  treaties  made,  or  which  shall  be 
made  under  the  authority  of  the  United  States, 
shall  be  the  supreme  law  of  tho  land,  and  the  judges 
in  every  State  shall  be  bound  thereby,  anything  in 
the  constitution  or  laws  of  any  State  to  the  con- 
trary notwithstanding.’ 

“This  is  the  authoritative  language  of  the  American 
people;  and,  if  gentlemen  please,  ot  the  American 
States.  It  marks,  with  lines  too  strong  to  be  mis- 
taken, the  characteristic  distinction  between  the 
Government  and  the  Union,  and  those  of  the  States. 
The  General  Government,  though  limited  as  to  its 
objects,  is  supreme  with  respect  to  those  objects. 
This  principle  is  a part  of  the  Constitution;  and  if 
there  be  any  who  deny  its  necessity,  none  can  deny 
its  authority. 

“To  this  supreme  government  ample  powers  are 
confided,  and,  if  it  were  possible  to  doubt  the  great 
purposes  for  which  they  were  so  confided,  the  people 
of  the  United  States  have  declared  that  they  are 
given  ‘in  order  to  form  a more  perfect  union,  estab- 
lish justice,  insure  domestic  tranquillity,  provide  for 
tho  common  defense,  promote  the  general  welfare, 
and  secure  the  blessings  of  liberty  to  themselves  and 
their  posterity.’ 

“ With  the  ample  powers  confided  to  this  supreme 
government  for  these  interesting  purposes  are  con- 
nected many  express  and  important  limitations  on 
the  sovereignty  of  the  States,  which  are  made  for 
the  same  purposes.  The  powers  of  the  Union  on  the 
great  subjects  of  war,  peace,  and  commerce,  and  on 
many  others,  are  in  themselves  limitations  of  the 
sovereignty  of  the  States,  but  in  addition  to  these, 
the  sovereignty  of  the  States  is  surrendered”— 

And  here  I beg  gentleftnen  on  the  other  side 
to  mark  what  he  says — 

"but  in  addition  to  these,  the  sovereignty  of  the 
States  is  surrendered  in  many  instances  where  the 
surrender  can  only  operate  to  the  benefit  of  the  peo- 
ple, and  where,  perhaps,  no  other  power  is  conferred 
on  Congress  than  a conservative  power  to  maintain 
the  principles  established  in  the  Constitution.” 


“ to  insure  domestic  tranquillity”— 
which  I believe  is  to  preserve  peace  every- 
where within  the  boundaries  of  the  Uuited 
States — 

“and  to  provide  forthecommon  defense,  to  promote 
tho  general  welfare,  and  to  secure  the  blessings  of 
liberty  to  ourselves  and  our  posterity,  do  ordain  and 
establish  this  Constitution  for  the  United  States  of 
America.” 

These,  say  the  court,  are  the  general  objects  ; 
and  in  carrying  out  these  objects  in  the  methods 
^Ittd  through  the  instrumentalities  which  the 
Constitution  had  provided,  Congress,  the  legis- 
lative power,  as  a sovereign  power  over  the 
people,  of  themand'from  them,  and  exercising 
the  same  forces  over  them  that  a State  does 
over  its  citizens,  was  to  select  the  means  through 
which  these  great  objects  were  to  be  attained. 
Therefore  I say,  sir,  that  from  the.  beginning 
this  was  a Government  of  the  uation  and  over 
the  inhabitants  of  the  nation  as  inhabitants, 
and  not  through  the  power  of  the  States,  just 
so  far  as,  and  to  the  full  extent  that,  the  Con- 
stitution in  its  grant  of  powers  confided  subjects 
for  consideration  and  provision  to  the  national 
Government. 

Again,  Mr.  Chief  Justice  Marshall,  in  the 


Again,  in  the  case  of  Gibbons  vs.  Ogden,  the 
court  declare: 

“ And  our  Constitution  being,  as  was  aptly  said  at 
the  bar,  one  of  enumeration  and  not  of  definition  to 
ascertain  the  extent  of  the  power  it  becomes  neces- 
sary to  settle  the  meaning  of  the  terms  employed 
in  it.” 

The  men  who  formed  the  Constitution  did 
not  undertake  to  define  what  were  the  rights 
of  man  which  it  undertook  to  secure.  They 
did  not  undertake  to  define  the  war,  for  illus- 
tration, which  it  authorized  Congress  to  make. 
It  enumerated,  as  the  court  have  said,  the 
great  objects  over  which  and  for  which,  to 
secure  the  ends  named  in  the  preamble,  the 
powers  of  the  people  were  delegated  to  the 
authority  of  the  Government,  leaving  to  the 
Government,  through  its  proper  departments, 
the  definition  of  those  powers. 

Now,  Mr.  President,  I think  it  must  be.  ad- 
mitted— I had  supposed  that  events  had  settled 
it  until  I heard  this  debate — that  this  Consti- 
tution, be  it  much  or  little,  (for  I am  not  now 
on  the  point  of  its  extent,)  if  it  gives  us  au- 
thority or  if  it  withholds  it,  is  to  the  extent  of 
its  scope  a Constitution  of  the  people,  and  that 
it  brings  the  people,  in  respect  to  every  right 


1 00839  S 


4 


\ 


which  it  secures  to  them,  into  direct  commun- 
ication with  that  Government  which  exists 
by  the  Constitution,  and  which  only  and  solely 
has  the  paramount  power  to  enforce  it.  The 
governments  of  the  States  cannot  finally  or 
independently  enforce  or  decline  to  enforce  the 
Constitution  of  the  United  States;  it  is  not 
their  Constitution  in  thesense  that  the  consti- 
tution of  the  State  is.  It  is  the  Constitution  of 
the  whole  people  as  a national  body,  and  the 
requirements  of  which  they  cannot  finally  pass 
upon  ; and  therefore  whatever  rights  are 
secured  to  the  people  under  it  must  be  guar- 
antied to  them  and  made  effectual  for  them 
at  last  through  the  instrumentality  of  the 
national  Government,  and  through  no  other. 

I need  scarcely  occupy  your  time,  Mr.  Presi- 
dent, and  that  of  the  Senate,  in  showing  how 
perfectly  the  authority  of  Congress  to  execute 
this  Constitution,  and  theauthority  of  Congress 
to  choose  the  means  by  which  it  shall  be 
executed,  is  recognized  by  the  judicial  depart- 
ment of  the  Government ; but  lest  my  friends 
on  the  other  side  should  suspect  that  I had 
slighted  this  part  of  their  argument,  I will  read 
to  them  an  authority  which  I am  sure  they  will 
recognize — that  of  Prigg  vs.  The  Common 
wealth  of  Pennsylvania,  in  which  the  Supreme 
Courtdecided,  as  they  kuow,  that  theobligation 
imposed  to  return  fugitives  from  labor  was  an 
obligation  the  performance  of  which  by  the 
nation  was  secured  by  the  Constitution  of  the 
U nited  States  as  it  was.  Although  nothing  was 
said  as*to  the  power  of  Congress  to  put  it  into 
execution,  although  fto  “appropriate  legisla- 
tion” was  referred  to  or  authorized  in  terms 
to  give  it  effect,  the  court  said,  as  they  know, 
and  said  as  the  law  was,  painful  and  unfor- 
tunate as  was  the  incident  which  should  have 
brought  it  into  application,  that  it  was  the 
solemn  duty  of  Congress  under  the  Constitu- 
tion to  secure  to  the  individual,  in  spite  of  the 
State,  or  with  its  aid,  as  the  case  might  be,  pre- 
cisely the  rights  that  the  Constitution  gave  him, 
and  that  there  should  be  no  intermediate 
authority  to  arrest  or  oppose  the  direct  per- 
formance of  this  duty  by  Congress.  The  court 
say : 

“ The  State  legislation  may  be  entirely  silent  on 
the  whole  subject,  and  its  ordinary  remedial  process 
framed  with  different  views  and  objects,” — 

which  has  a very  apt  application  to  some  of 
the  State  legislation  in  the  States  whose  con- 
dition we  have  been  considering — 

“and  this  may  be  innocently  as  well  as  designedly 
done,  since  every  State  is  perfectly  competent,  and 
has  the  exclusive  right  to  prescribe  the  remedies  in 
it?  own  judicial  tribunals,  to  limit  the  time  as  well  as 
the  mode  of  redress,  and  to  deny  jurisdiction  over 
Cases  which  its  own  policy  and  its  own  institutions 
either  prohibit  or  discountenance. 

“If,  therefore,  the  clause  of  the  Constitution  had 
stopped  at  the  mere  recognition  of  the  right,  without 
providing  or  contemplating  any  means  by  which  it 
might  be  established  and  enforced  in  cases  where  it 
did  not  execute  itself,  it  is  plain  that  it  would  have, 
in  a great  variety  of  cases,  a delusive  and  empty  an- 
nunciation. If  it  did  not  contemplate  any  action, 
cither  through  State  or  national  legislation,  as  aux- 
iliaries to  its  more  perfect  enforcement  in  the  form 
of  remedy  or  of  protection” — 


“ Protection,”  mark  the  word,  Mr.  Presi- 
dent; it  appears  in  the  fourteenth  amendment — 

“then,  as  there  would  be  no  duty  on  either  to  aid 
the  right,  it  would  be  left  to  the  mere  comity  of  the 
States  to  act  as  they  should  please;  and  would  de- 
pend for  its  security  upon  the  changing  course  of 
public  opinion,  the  mutations  of  public  policy,  and 
the  general  adaptations  of  remedies  for  purposes 
strictly  according  to  the  lex  fori”  * * * * 

“The  fundamental  principle,  applicable  to  all 
cases  of  this  sort,  would  seem  to  be,  that  where  the 
end  is  required  the  means  are  given  ; and  where  the 
duty  is  enjoined,  the  ability  to  perform  it  is  contem- 
plated to  exist  on  the  part  of  the  functionaries  to 
whom  it  is  intrusted.” 

Mr.  President,  my  friend  from  Illinois,  [Mr. 
Trumbull,]  when  he  addressed  the  Senate  the 
other  day,  seemed  to  have  the  apprehension 
that  we  were  or  might  be  by  this  bill  enter- 
ing upon  a great  change  in  the  character  of 
the  Government,  in  the  fact  that  we  were  en- 
deavoring to  protect  personal  rights,  which, 
he  said,  the  traditions  of  the  Government  and 
the  course  of  the  Constitution  had  always  left 
to  the  States.  If  that  were  so,  it  would  be  no 
argument  against  the  propriety  of  this  bill, 
provided  the  new  phases  and  amendments  of 
the  Constitution  had  made  the  change.  But 
it  is  not  a new  idea.  As  I have  stated,  the 
government  of  the  United  States  over  the  sub- 
jects which  are  intrusted  to  it  has  always  been 
a government  which  dealt  directly  with  the 
people,  and  which,  from  the  nature  of  things, 
could  not  in  any  case  effectually  deal  other- 
wise than  by  open  war  directly  with  the  State, 
even  in  those  cases  where  the  prohibition  is 
directly  upon  the  State,  as  in  that,  for  instance, 
of  making  a negotiation  with  a foreign  Power. 

If  the  State  of  Vermont,  for  example,  nego- 
tiates with  the  British  Government  for  the 
extradition  of  fugitives,  what  is  the  United 
States  to  do  about  it  as  to  the  State  of  Ver- 
mont? She  can  institute  no  process  against 
that  State  to  set  aside  the  treaty.  Her  only 
redress  against  us  would  be  either  “ the  last 
reason  of  kings,”  as  the  saying  is,  warfare,  for 
a violation  of  that  duty,  or  else,  as  also  has  been 
done,  addressing  itself  directly  to  the  people,  to 
the  persons,  in  spite  of  any  act  of  the  State  in 
its  collective  capacity.  And  so  in  the  very  in- 
stance to  which  I have  referred  as  an  illustra- 
tion of  the  prohibition  to  make  treaties,  which 
is  a direct  prohibition  on  the  States,  which  has 
nothing  on  the  face  of  it  to  do  the  individual 
action  or  individual  right  at  all,  the  only 
method  through  which  the  treaty- making 
power  of  a State  could  be  assailed  or  the  act 
of  making  a treaty  by  a State  could  be  denied, 
was,  and  has  been,  in  the  very  case  of  the  State 
of  Vermont,  through  the  intervention  of  the 
national  Legislature  acting  upon  the  persons 
in  providing  methods  of  personal  repression 
through  the  courts;  so  that  many  years  ago, 
when  the  Governor  of  the  State  of  Vermont 
entered  into  an  arrangement,  before  we  had 
any  extradition  treaty  with  Great  Britain,  to  sur- 
render a notorious  criminal  to  the  authorities 
of  Canada,  that  criminal  applied  to  the  courts 
and  was  released  by  the  Supreme  Court  of  the 


5 


United  States,  dealing  directly  between  him 
and  the  person  who  held  the  office  of  Gov- 
ernor, not  Governor  Jennison,  but  citizen 
Jennison. 

It  is  a delusion,  therefore,  to  imagine  that 
at  any  time  and  in  any  way  the  faculties  and 
functions  enumerated  in  this  Constitution, 
which  have  been  given  to  the  United  States 
or  have  been  denied  to  the  States,  are  to  be 
carried  out  solely  through  secondary  meins. 
Wherever  the  Constitution  imposes  a duty  or 
a prohibition,  and  it  becomes  necessary  to 
make  it  effectual,  the  Government  always  has, 
and  it  always  must,  short  of  warfare,  go  directly 
to  the  thing  itself,  take  hold  of  the  citizen. 

In  the  course  of  this  enumeration  of  per- 
sonal rights,  perhaps  one  of  the  chief  in  the  old 
Constitution  was  that  of  securing  equal  priv- 
ileges and  immunities  to  the  citizens  of  the 
several  States.  I should  not  have  thought  it 
necessary  to  allude  to  this  provision  in  this 
debate  but  for  the  stress  that  my  friend  from 
Illinois,  [Mr.  Trumbull.]  who  I am  sorry  to 
see  is  not  present  at  this  time,  laid  upon  it 
when  he  was  endeavoring  to  persuade  himself 
that  the  fourteenth  amendment  of  the  Consti- 
tution had  made  no  change  in  the  constitutional 
rights  of  citizens  or  in  the  constitutional  duties 
of  the  Government  toward  them.  He  under- 
took to  show  that  the  provision  in  the  four- 
teenth amendment,  using  sometimes  words  of 
the  same  character,  was  the  same  in  substance 
with  the  ancient  provision.  That  is  another 
mistake.  The  ancient  provision  was  that — 

“The  citizens  of  each  State  shall  be  entitled  to 
all  privileges  and  immunities  of  citizens  in  the  sev- 
eral States.” 

Not  that  the  citizens  of  the  United  States 
shall  be  entitled  to  privileges  and  immunities 
in  every  State,  but  that  the  citizen  of  one  State 
going  into  another  should  have  the  rights  of  a 
citizen  there;  and  it  was  out  of  that  that  the 
doctrine  grew,  and  it  came  to  be  legal  doctrine 
almost  at  last,  that  the  citizen  of  one  State 
going  into  another  was  not  entitled  to  exercise 
the  rights  of  a citizen  of  that  State  in  every 
case;  and  it  was  out  of  that,  that  the  doctrine 
grew  that  the  citizen  of  one  State  might  not  be 
a citizen  of  the  U nited  States  at  all,  in  the  sense 
of  being  entitled  to  the  privileges  and  immun- 
ities of  the  citizen  of  another  State.  It  was 
only  a State  citizenship,  and  from  that  State 
citizenship  resulted  the  national  citizenship  in 
that  State,  and  when  he  had  removed  to  another 
State  he  then  became  a citizen  in  due  process 
of  time  of  that  State,  and  his  national  citizen- 
ship resulted,  as  the  branch  results  from  the 
root,  from  his  citizenship  of  that  State.  In 
other  words,  national  citizenship  before  this 
amendment  was  merely  a consequence  of  State 
citizenship,  and,  as  the  old  saying  is,  as  the 
stream  cannot  rise  higher  than  its  source,  so 
the  right  of  the  national  citizen,  using  that  term 
as  applied  to  him,  was  not  greater  than  the 
right  of  the  State  citizen,  however  that  might 
be  cramped  or  defeated  by  State  legislation  or 
State  constitutions.  Upon  that  principle  the 


State  of  South  Carolina  imprisoned  citizens  of 
Massachusetts  because  they  visited  its  ports  for 
lawful  commerce,  and  the  Constitution  of  the 
United  States,  so  far  as  that  went,  if  those  per- 
sons had  gone  there  to  remain,  to  reside,  instead 
of  going  in  the  casual  course  of  business,  would 
have  been  powerless  to  protect  them. 

Mr.  TRLJ  MBULL.  Do  1 disturb  the  Senator 
if  1 ask  him  a question? 

Mr.  EDMUNDS.  Not  in  the  slightest  • 
degree. 

Mr.  TRUMBULL.  I should  like  to  ask  the 
Senator  from  Vermont  if  the  United  States 
were  not  bound,  before  the  fourteenth  amend- 
ment, to  protect  all  the  privileges  and  immun- 
itise  of  citizens  of  the  United  States,  whatever 
they  were?  Under  the  general  clause  giving 
Congress  authority  to  carry  out  and  protect 
whatever  powers  are  vested  in  the  United 
States,  if  there  was  such  a thing  as  a citizen 
of  the  United  States,  which  the  Senator  will  of 
course  admit,  whatever  his  privileges  and  im- 
munities were,  was  not  the  Government  of  the 
United  States  bound  to  protect  them  every- 
w here ? 

Mr.  EDMUNDS.  That  is  what  I have  been 
trying  to  show  for  half  an  hour,  in  the  best 
way  I could. 

Mr.  TRUMBULL.  Then,  if  the  Senator 
assents  to  that,  I desire  to  ask  him  whether 
the  privileges  and  immunities  of  a citizen  of 
the  United  States  were  not  precisely  the  same 
before  the  adoption  of  the  fourteenth  amend- 
ment, and  if  not.  wherein  do  they  differ? 

Mr.  EDMUNDS.  My  friend  sees  where  he 
is  coming  out,  and  60  1 will  wait  a moment 
before  I auswer  the  question  in  form.  I say, 
and  have  endeavored  to  maintain,  that  the 
United  States  was  bound,  is  bound,  and  always 
must  be  bound,  like  every  other  sovereign 
Government,  to  protect  every  right  that  it  gives 
to  its  citizens.  There  can  be  no  doubt  of  it. 
That  is  precisely  the  position  upon  which  I 
stand.  But  what  I said  was  that  a citizen  only 
became  a citizen  of  the  United  States,  under 
the  language  of  this  Constitution  that  I have 
read,  through  the  fact  that  he  was  n citizen  of 
a State,  to  begin  with,  except  in  the  case  of 
naturalization,  and  then  he  became,  by  the 
act  of  the  nation,  a citizen  of  the  State  ; that 
the  national  citizenship  was  the  consequence 
of  the  State  citizenship,  and  therefore  that  the 
privileges  of  a national  citizen  must  always 
be  measured  by,  and  controlled  by,  the  rules 
that  applied  to  State  citizenship  ; and  hence 
if  the  State  of  South  Carolina  wished  to  en- 
slave a portion  of*its  citizens,  if  any  citizen  of 
another  State  chose  to  go  there  and  be  en- 
slaved, if  he  came  within  the  description  of 
the  enslaved  persons,  he  must  take  his  chance 
and  the  Constitution  could  not  help  him.  That 
is  the  position.  As  I go  along  1 will  answer 
the  other  part  of  the  question  of  my  friend, 
and  he  will  presently  see  what  the  answer  is. 

Now,  sir,  to  put  this  question  at  rest  as  to 
what  was  the  nature  of  national  citizenship, 
whether  it  was  fundamental  because  the  person 


6 


was  an  inhabitant  of  the  nation  itself,  or  born 
in  it,  or  naturalized  to  it,  or  whether  it  was  the 
mere  consequence  of  the  fact  that  he  was  a 
citizen  of  a State,  the  thirteenth  and  fourteenth 
amendments  came  in.  The  fourteenth  amend- 
ment declared  that — 

"All  persons  born  or  naturalized  in  the  United 
States,  and  subject  to  the  jurisdiction  thereof,  are 
citizens  of  the  United  States  and  of  the  State  wherein 
they  reside.” 

. The  order  of  the  language  of  the  old  Consti- 
tution is  reversed  absolutely.  Instead  of  de- 
claring, as  it  did  before,  that  a citizen  of  a State 
was  entitled  to  the  privileges  of  a citizen  in 
another  State,  it  declared  that  every  person 
born  within  the  territory  qf  the  United  States 
was  a citizen  of  the  nation,  and, by  consequence, 
a citizen  of  any  State  in  which  he  might  from 
time  to  time  reside. 

Mr.  TRUMBULL.  If  the  Senator  will 
allow  me  again,  did  that  do  anything  more 
than  give  citizenship  to  a class  of  persons  who 
before  that  time  did  not  have  it,  and  did  it 
give  anybody  any  privileges  and  immunities 
beyond  those  possessed  by  a confessed  citizen 
of  the  United  States  before  its  enactment? 

Mr.  EDMUNDS.  I declare  most  emphat- 
ically that  it  did ; that  it  gave  the  man  who 
had  been  a citizen  of  Vermont  or  of  Massa- 
chusetts before,  and  who  under  the  old  Con- 
stitution, becoming  a citizen  of  South  Caro- 
lina, only  had  such  rights  as  the  constitution 
of  South  Carolina  chose  to  give  to  their  citi- 
zens, either  to  be  a slave  or  a free  man,  or 
whatever  condition  they  might  impose  upon 
him,  a national  citizenship  as  an  original  and 
fundamental  right  that  no  State  could  regu- 
late or  destroy  or  impede,  because  it  says  so  ; 
and  as  a consequence  of  that,  it  said  wherever 
he  went  he  became  a citizen  of  the  State  to 
which  he  emigrated. 

Mr.  TRUMBULL.  Now,  will  the  Senator 
allow  me  to  ask  him  one  other  question  right 
there  ? 

Mr.  EDMUNDS.  With  great  pleasure. 

Mr.  TRUMBULL.  I ask  him  whether, 
before  the  thirteenth  amendment,  he  holds 
that  a native-born  white  citizen  of  Vermont 
could  be  reduced  to  slavery  in  South  Caro- 
lina, without  doing  it  in  defiance  of  the  Con- 
stitution of  the  United  States? 

Mr.  EDMUNDS.  I say  he  could,  upon  the 
doctrine  of  the  decisions  that  had  been  made. 
If  I had  been  the  judge  I should  have  declared 
that  the  preamble  and  terms  of  the  Constitu- 
tion secured  the  freedom  of  every  man  already 
free,  white  and  black,  everywhere.  I would 
not  have  declared  that  a btack  man  by  the 
Constitution  of  the  United  States  could  be 
made  a slave  anywhere. 

Mr.  TRUMBULL.  Does  the  Senator  mean 
to  affirm  that  any  decision  was  ever  made  that 
a white  man  could  be  made  a slave? 

Mr.  EDMUNDS.  No,  sir;  I do  not  mean 
to  affirm  that  there  was  any  such  decision. 

Mr.  TRUMBULL.  Then  there  is  no  decis- 
ion to  that  extent. 


Mr.  EDMUNDS.  My  friend  and  I are  now 
talking  about  principles.  I say,  under  the  Con- 
stitution, as  it  was  before  these  amendments, 
the  right  of  a white  man  and  a black  man  alike 
residing  in  the  State  of  South  Carolina,  and 
becoming  citizens  of  it,  depended  upon  the 
laws  of  South  Carolina  and  its  constitution, 
and  if  a majority  of  the  people  of  South  Car- 
olina chose  to  reduce  my  friend  and  me  to 
slavery,  if  we  were  citizens  of  that  State,  the 
national  Government  could  not  help  it.  I say 
that  upon  the  principle  of  the  decisions  that 
have  been  made,  not  upon  the  constitution 
as  I wcfcpld  have  construed  it  myself ; and  I 
say  that  it  was  to  correct  that  wrong  and  dis- 
honest and  base  construction  that  was  put  upon 
this  instrument  that  this  amendment  waS|intro- 
duced,  not  as  a mere  paraphrase  of  what  had 
been  enacted  before,  but  as  a fundamental 
security  of  a national  right  which  should  be 
supreme  everywhere,  and  against  which  no 
State  constitution  or  State  legislation  or  usage 
could  in  the  slightest  degree  prevail. 

Mr.  TRUMBULL.  If  the  Senator  will  allow 
me,  we  both  agree  that  we  would  not  have 
made  such  a decision  under  the  old  Constitu- 
tion ; but  the  Senator  now  puts  it  upon  judi- 
cial decision,  that  a white  native-born  citizen 
of  the  United  States  might  have  been  reduced 
to  slavery  in  another  State.  Now,  I ask  him 
if  the  judicial  decisions  that  sanctioned  the 
reducing  to  slavery  of  a human  being  were  not 
all  based  upon  color,  their  being  persons  of 
African  descent,  and  if  there  is  any  decision 
anywhere  intimating  that  a white  citizen  of 
Vermont  or  Illinois,  being  a citizen  of  the 
United  States,  could  ever  have  been  reduced 
to  slavery  in  any  of  the  States  of  the  Union? 

Mr.  EDMUNDS.  Mr.  President,  I have 
already  said  that  all  the  decisions  upon  the 
subject  of  slavery  as  such,  which  is  only  one 
form  of  depriving  a man  of  his  liberty,  were 
based  upon  color.  But  I assert  that  the  Su- 
preme Court  of  the  United  States  under  the 
old  Constitution  has  solemnly  decided  that 
those  great  words  in  the  fifth  article  of  the  old 
amendments,  that  no  man  shall  be  deprived 
of  life,  liberty,  or  property  without  due  pro- 
cess of  law,  did  not  prevent  a State  from  de- 
priving a man  of  life,  liberty,  or  property 
without  due  process  of  law  ; that  it  was  none 
of  our  business  if  they  did  ; that  we  had  no 
power  to  protect  a man  against  a violation  of 
his  liberty  or  his  life,  because  the  Constitution 
of  the  United  States  or  of  his  own  State  pro- 
hibited it ; be  must  look  to  bis  own  State  for 
redress,  and  that  we  had  no  power  to  interfere. 
Therefore.  I say,  if  the  Constitution  of  the 
United  States  did  not  protect  the  citizen  of 
Illinois  against  illegal  imprisonment,  being 
white,  aqd  the  courts  of  the  United  States  had 
no  power  to  interfere  and  defend  him,  then  the 
people  of  Illinois,  if  they  had  chosen,  could 
have  kept  him  in  prison  forever ; they  could 
have  taken  him  to  their  corn-fields  and  com- 
pelled him  to  labor;  they  could  have  made 
him  a slave. 


7 


So  I am  justified  in  saying  that  the  decisions 
under  the  old  Constitution  in  principle  and  in 
effect  completely  cover  the  proposition  that 
it  was  not  in  the  power  of  the  United  States 
to  defend  the  right  of  a citizen  of  the  United 
States  to  life,  liberty,  or  property,  against  the 
invasion  of  it  by  any  State  or  by  any  person 
in  a State  with  or  without  the  authority  of  its 
laws;  and  the  reason  was,  as  I have  stated, 
that  the  citizenship  which  draws  to  it  protec- 
tion, which  draws  to  it  the  privileges  and  im- 
munities which  have  been  spoken  of  in  tho 
Constitution,  and  which  we  all  agree  include 
the  right  to  life,  the  right  to  liberty,  tlfe  right 
to  property,  the  right  to  freedom  from  all  in- 
terference without  due  process  of  law,  afforded 
no  protection,  because  that  citizenship  rested 
upon  State  authority,  and,  only  as  a conse 
quence  of  that  State  authority  and  growing 
out  of  it,  had  a national  character.  That 
being  known,  the  fourteenth  amendment,  not 
being  a mere  empty  dream  or  an  empty  asser- 
tion of  an  old  principle,  declared  that  every 
person  born  in  the  United  States  shall  first 
and  always  be  a citizen  of  the  nation,  and  sec- 
ond, and  as  a consequence,  be  a citizen  of  the 
State  in  which  he  resides. 

Now,  Mr.  President,  to  return  to  the  point 
I was  speaking  upon — and  in  my  discussion 
with  my  friend  I have  got  a Tittle  out  of  the 
order  in  which  I intended  Jo  have  spoken  of 
these  subjects — this  Constitution  has  always 
been  a Constitution  of  the  people,  and  has  in 
a thousand  ways  provided  for  the  protection 
of  the  people,  imposing  duties,  guarantying 
rights,  regulating  affairs,  prohibiting  action  to 
States,  and  so  it  has,  in  a great  variety  of 
instances  in  the  course  of  these  powers  and 
prohibitions,  been  applied  to  the  people  directly 
to  effect  its  purposes  and  to  defend  its  powers, 
and  wherever  and  whenever  that  occasion  has 
arisen  it  has  always  been  done  precisely  upon 
the  principles  that  this  bill  contains,  that  of 
dealing  with  the  people,  that  of  enacting  laws, 
and  never  that  of  either  by  advice  or  protest, 
warfare  or  proclamation,  dealing  with  the 
States. 

I have  as  a matter  of  curiosity  gone  through 
the  ancient-  statutes  as  to  crimes  in  order  to 
see,  as  my  friend  from  Illinois  thought  we 
were  making  a great  change  in  the  Govern- 
ment, how  largely  the  founders  of  the  Govern- 
ment, in  enacting  its  crimes  acts,  have  gone 
into  the  constant  intercourse  of  the  people  in 
their  business  relations,  how  much  it  has  done 
that  might  have  been  done  by  the  States,  and 
in  many  instances  how  much  it  has  done  that 
has  always  been  done  also  by  the  States  acting 
upon  the  same  class  of  subjects.  Here  are 
some  of  them : 

“An  act  to  punish  the  negligence  of  steam- 
boat officers,”  not  on  the  high  seas  alone,  but 
anywhere  in  the  United  States,  by  which  any 
person  should  be  injured.  Nobody  disputes 
that  a State  can  pass  laws  to  punish  that. 
Nobody  disputes  that  the  State  laws  give 


rights  of  private  action  to  people  for  negli- 
gence of  steamboat  owners. 

“ The  embezzlement  of  goods  of  the  United 
States.”  There  is  a power  which  it  might  be 
said  was  necessary  to  protect  the  interest  of 
the  United  States.  That  is  true;  and  while 
it  is  perfectly  true,  it  would  be  lawful  for  the 
States  to,  and  many  of  them  do,  have  statutes 
under  which  anybody  can  be  convicted  for 
embezzling  the  goods  of  another,  whether  the 
United  States  or  a foreign  Power,  or  any  per- 
son having  property  within  their  territorial 
jurisdiction. 

“The  forging  of  powers  of  attorney  to  trans- 
fer stocks.”  There  is  a case  of  a purely  pri- 
vate crime  between  man  and  man,  nothing 
else.  The  power  of  attorney  to  transfer  stocks 
is  not  a Government  security.  It  has  no  more 
relation  to  it  than  any  other  power  of  attor- 
ney has,  except  that  the  Government  security 
happens  to  be  the  subject  to  which  the  power 
of  attorney  is  applied,  and  it  is  punished  as  a 
private  cheat,  as  all  species  of  counterfeiting 
and  forgery  of  personal  documents  are.  No- 
body ever  questioned  the  propriety  of  that 
legislation ; and  at  the  same  time  all  the  States, 
without  exception,  have  enacted  and  enforced 
laws  against  the  forgery  of  precisely  the  same 
instruments;  and  yet  nobody  ever  heard  that 
the  Union  was  about  to  fall  to  pieces  because 
the  United  States  had  invaded  the  sacred  right 
of  the  State  to  regulate  the  conduct  of  its  own 
citizens  about  crimes  of  this  character. 

“ Conspiracies  to  cast  away  vessels,”  not  on 
the  high  seas  merely,  but  anywhere  within  the 
jurisdiction  of  the  United  States. 

“ Conspiring  to  plunder  stranded  vessels.” 
Plundering  stranded  vessels  within  the  body 
of  a county  of  a State,  which  in  every  State  in 
the  Union,  I have  no  fear  in  saying,  is  an 
offense  against  State  laws  ; and  yet  nobody  has 
been  alarmed  at  that  legislation. 

“Assaulting  an  officer.”  And  here,  sir,  is 
the  shibboleth  on  which  my  friend  from  Illinois 
has  staggered  and  fallen.  The  committee  put 
into  this  bill  an  amendment  providing  that  if 
any  man  should  assault  an  officer  unlawfully 
and  wickedly,  or  rather  conspire  to  assault  him, 
while  in  the  performance  of  his  duty,  he  should 
be  amenable  to  punishment.  My  honorable 
friend  from  Illinois  has  said  that  this  for  him 
spoils  the  whole  bill. 

Mr.  TRUMBULL.  Not  at  all.  I am  in 
favor  of  that. 

Mr.  EDMUNDS.  I am  very  glad  that  my 
friend  has  experienced  a sudden  conversion. 
Let  me  read  from  his  remarks. 

Mr.  TRUMBULL.  While  the  Senator  is 
hunting  it  up,  I will  say  that  my  position  was, 
and  I think  he  will  find  it  the  same  in  the 
paper — if  it  is  not  I did  not  express  what  I 
intended — that  the  Government  had  the  right 
to  protect  its  officers  in  the  discharge  of  their 
duties ; but  that  the  Government  of  the  United 
States  had  no  right  to  punish  for  a conspiracy 
to  cut  down  the  Senator’s  apple  trees  in  Ver- 


8 


raont,  when  he  is  here  as  a Senator  discharging 
his  duties.  The  bill  as  proposed  to  be  amended 
provides  for  punishing  a conspiracy  to  injure 
the  property  of  another  while  the  officer  is 
engaged  in  the  discharge  of  his  duties  a thou- 
sand miles  away,  if  you  please,  and  having  no 
connection  with  the  discharge  of  his  duties. 

Mr.  EDMUNDS.  I am  immeasurably  happy- 
that  in  the  short  course  of  thirty-five  or  forty 
minutes  I should  have  found  one  convert;  I 


able  friend  said : 


“I  had  stated  that  I did  not  suppose  the  Senator 
from  Vermont  was  in  favor — and  I might  say  I was 
quite  well  satisfied  ho  was  not — of  entering  the 
States  to  pass  a general  criminal  code  for  the  States, 
or  a general  law  for  the  redress  of  civil  injuries  in 
the  courts  in  cases  of  contest  between  individuals, 
where  the  Constitution  and  laws  of  the  United  Sta  tes 
were  not  directly  encroached  upon.  Assuming 
that  to  be  so.  and  that  that  is  the  opinion  of  every 
member  of  the  Senate,  I should  like  now  to  get  the 
attention  of  Senators  a moment,  and  especially  of 
the  lawyers  of  the  body,  to  a single  amendment  in 
the  seventeenth  line  of  the  second  section.  The 
Judiciary  Committee  propose  to  insert  these  words, 

‘ or  while  engaged  in  the.’  ” 

Now*  let  me  read  the  text  of  the  bill: 

Or  by  force,  intimidation,  or  threat,  to  induce 
any  officer  of  the  United  States  to  leave  any  State, 
district,  or  place  where  his  duties  as  such  officer 
might  lawfully  be  performed,  or  to  injure  him  in 
bis  person  or  property  on  account  of  his  lawful  dis- 
charge of  the  duties  of  his  office,  &c. 

That  is  the  way  the  bill  read  in  the  first 
place.  The  committee  propose  to  amend 
that  so  as  to  make  it  read  : 

Or  to  injure  him  in  his  person  or  property  on 
account  of  or  while  engaged  in  the  lawful  discharge 
of  the  duties  of  his  office. 

Now,  says  the  Senator  from  Illinois  : 

“I  think  that  changes  the  whole  character  of  that 
section.  Let  me  show  how. 

"As  the  bill  originally  stood,  as  it  came  from  the 
House,  it  provided  for  the  punishment  of  a conspir- 
acy to  injure  a person  holding  a United  States  office 
in  his  person  or  property  on  account  of  his  lawful 
discharge  of  the  duties  of  his  office.  That  is  legiti- 
mate. I can  vote  for  a law  that  punishes  a conspir- 
acy to  injure  a United  States  officer  on  accounted 
his  lawful  discharge  of  the  duties  of  his  office.  But 
what  is  the  amendment?  Its  effect  is  to  punish  a 
conspiracy  to  injure  his  property  ‘while  he  is  en- 
gaged in  the  lawful  discharge  of  his  duties.’  Is  not 
that  very  different?” 

And  then  he  proceeds  to  illustrate. 

Mr.  TRUMBULL.  That  is  exactly  what  I 
say  now. 

Mr.  EDMUNDS.  Very  good.  Let  us  see 
what  kind  of  a law  we  have  now.  The  hon- 
orable Senator  from  Illinois  made  no  distinc- 
tion, for  noue  could  be  made,  in  his  argument 
between  the  case  of  assaulting  the  officer  while 
engaged  in  the  discharge  of  his  duties  or  injur- 
ing his  property.  He  put  it  upon  the  ground 
that  it  must  be  on  account  of  the  act  interfer- 
ing with  the  discharge  of  his  duties  which 
made  the  case  criminal  for  our  punishment. 
Now,  let  us  see.  Here  is  the  act  of  1790,  old  i 
enough  to  be  outlawed,  perhaps,  in  the  esti- 
mation of  my  friend,  but  it  is  In  force  yet: 

"If  any  person  or  persons  shall  knowingly  and 
willfully  obstruct,  resist,  or  oppose  any  officer  of  the 


United  States,  in  serving  or  attempting  to  serve  or 
execute  any  mesne  process  or  warrant,  or  any  rule 
or  order  of  any  of  the  courts  of  the  United  States, 
or  any  other  legal  or  judicial  writ  or  process  what- 
soever, or  shall  assault,  beat,  or  wound  any  officer, 
or  other  person  duly  authorized,  in  serving  or  exe- 
cuting any  writ,  rule,  order,  process,  or  warrant 
aforesaid,  every  person  so  knowingly  and  willfully 
offendingin  the  premises  shall,  onconviction  thereof, 
be  imprisoned  not  exceeding  twelve  months,  and 
fined  not  exceeding  $300.” 

Mr.  TRUMBULL.  That  is  a very  proper 

Mr.  EDMUNDS.  We  have  had,  Mr.  Presi- 
dent, for  eighty  years  a statute  which  made  it 
a crimetto  assault  any  officer  while  engaged  in 
the  performance  of  his  duties,  not  on  account 
of  it,  but  to  injure  him  in  his  person  while  he 
was  engaged  in  the  performance  of  his  duties. 
Now,  my  honorable  friend  says  that  this  change, 
using  the  same  words  and  only  changing  the 
language  so  as  to  include  property  as  well  as 
person,  is  a great  departure  and  alters  the  whole 
principle  of  the  bill. 

' This  is  not  the  whole  of  my  friend’s  connec- 
tion with  this  thing,  and  I ana  sorry  that  he 
should  have  been  betrayed  suddenly  into  mak- 
ing the  opposition  to  this  change  that  he  did, 
because  only  three  years  ago,  as  I reminded 
him  on  that  occasion,  he  himself,  as  a mem- 
ber of  the  Judiciary  Committee,  heartily  con- 
curred in  and  assisted  to  reporta  provision  of 
exactly  that  same  character,  and  which,  I 
think  I am  safe  in  saying,  at  that  time  met  the 
approval  of  the  Senate  from  members  of  all 
parties  and  without  any  differences  of  political 
opinion  affecting  it  at  all.  Here  are  the  sec- 
tions which  my  friend’s  committee  reported 
with  his  concurrence,  the  sections  which  he 
and  I voted  for  when  they  were  amended  in  a 
part  of  their  phraseology.  The  first  making 
it  a crime  “ if  any  officer  shall  be,  while  in  the 
performance  of  his  official  duty,  unlawfully 
assaulted,  beaten,  or  shall  have  his  property 
unlawfully  taken,  injured,  or  destroyed  while 
engaged  in  the  performance  of  his  official 
duty.” 

The  very  language  of  the  amendment  which 
we  have  proposed  to  put  into  this  bill  was  bor- 
rowed. I do  not  mean  by  saying  “borrowed” 
to  say  copied  from,  but  the  idea  was.  borrowed 
from  our  own  discussion  and  recommendation 
in  favor  of  that  bill — which  did  not  become  a 
law,  not  because  it  was  defeated,  but*  because 
it  was  not  finally  acted  upon — in  which  and  for 
which  we  had  the  able  and  vigorous  assistance 
of  my  honorable  friend.  I thought,  therefore, 
that  the  committee  might  be  justified,  acting 
upon  the  traditions  of  the  old  statutes,  acting 
upon  the  opinion  of  my  friend  so  recently  ex- 
pressed to  us,  in  making  this  amendment.  I 
suppose  that  when  he  opposed  this  amendment 
the  other  day,  as  the  Globe  certainly  says  he 
did  oppose  it;  (for  he  said  that  it  changed  the 
whole  character  of  the  section,  and  he  could 
not  go  for  it,)  my  honorable,  friend  had  for- 
gotten, in  the  hurry  of  the  ten  thousand  things 
he  is  pressed  with,  that  this  very  subject  of 


9 


securing  an  officer  in  person  and  property  from 
unlawful  molestation  while  he  is  attending  to 
his  duties  was  one  which  had  met  this  cordial 
approval,  as  I think  it  ought  the  approval  of 
every  one.  But,  Mr.  President,  I am  taking 
too  much  time  with  that. 

As  1 have  said,  in  all  or  nearly  all  of  these 
instances,  and  I have  only  given  a few  of  them, 
where  the  United  States  has  exercised  crim- 
inal jurisdiction  over  the  acts  of  citizens  as 
between  each  other,  in  order  to  carry  out  the 
protections  which  the  Constitution  has  given 
to  the  operations  of  the  Government  and  to 
the  rights  of  citizens  under  it,  the  States,  at 
the  same  time,  as  States,  have  had  a criminal 
code  which  covered  almost  completely  the 
same  class  of  subjects. 

Mr.  TRUMBULL.  Does  the  Senator  mean 
to  say  that  I ever  expressed  any  opinions  about 
a bill  that  he  has  referred  to  as  having  been  re- 
ported here?  I presume  we  considered  it  in 
the  Judiciary  Committee,  but  it  was  never  dis- 
cussed in  the  Senate.  I do  not  think  I ever 
said  a word  about  it.  I do  not  recollect  the 
circumstances  about  it  now.  It  was  reported 
by  the  Senator  from  Vermont.  I may  have 
given  my  acquiescence  to  the  report  without 
examining  it  as  particularly  as  I ought  to  have 
done;  but  that  I ever  expressed  any  opinions 
in  the  Senate  in  favor  of  a proposition  that 
would  authorize  the  punishment  of  a conspir- 
acy to  injure  the  property  of  a man  simply 
because  he  was  an  officer  of  the  United  States, 
when  it  had  no  connection  with  the  discharge 
of  his  duties,  I deny. 

Mr.  EDMUNDS.  Well,  Mr.  President,  on 
that  denial  it  is  a question  between  the  record 
and  the  recollection  of  my  friend ; that  is  all. 

Mr.  TRUMBULL.  The  bill  was  not  re- 
ported by  me,  was  it? 

Mr.  EDMUNDS.  No,  it  was  not;  it  was 
reported  by  the  honorable  Senator’s  commit- 
tee, reported  with  his  concurrence,  and  the 
Globe  shows  no  dissent ; and  I happen  to  know 
personally  that  it  was  reported  with  his  con- 
currence. It  was  taken  up  in  the  morning 
hour  Tor  consideration  on  the  29th  of  June, 
1868,  toward  the  end  of  the  session,  I have  no 
doubt  in  the  presence  of  my  friend,  who  always 
attends,  during  the  morning  hour  certainly; 
and  it  was  discussed  and  amended  by  inserting 
in  the  second  section  words  which  by  a cler- 
ical mistake  had  been  omitted,  the  very  words 
which  we  put  into  this  bill,  “while  in  the  per- 
formance of  his  duty  and  that  amendment 
was  agreed  to  by  the  Senate. 

Now,  Mr.  President,  it  is  not  my  purpose  to 
find  fault  with  my  honorable  friend  from  Illi- 
nois for  changing  his  opinion,  if  he  has  seen 
fit  and  good  ground  to  do  it;  but  I think  he 
ought  not  to  have  said  the  other  day  that  this 
amendment  which  we  propose  changed  the 
whole  character  of  that  section  and  was  with- 
out any  precedent  to  support  it. 

I was  saying  when  my  friend  interrupted  me 
just  now  that  from  the  foundation  of  the  Gov- 
ernment, over. this  class  of  subjects — because 


the  whole  spirit  of  this  discussion  turns  upon 
the  question  whether  the  national  authority 
has  a right  to  deal  with  its  citizens  as  citizens, 
and  not  with  States,  or  whether  it  must  be  left 
to  the  States  alone  to  act  upon  her  citizens  in 
enforcing  the  national  Constitution — embra- 
cingalmost  onehalf  of  all  the  business  relations 
of  men  in  the  country,  embracing  a thousand 
different  operations  and  a thousand  different 
situations  of  society,  the  United  States  have 
had  and  administered  a criminal  code  to  pro- 
tect the  powers  and  to  execute  the  duties  which 
the  Constitution  has  confided  to  it.  And  in 
doing  this  they  have  not  either  “ invaded  ” or 
“entered”  any  State,  but  they  have  exercised 
the  constitutional  omnipresence  of  sovereignty, 
and  carried  forward  the  beneficent  sway  of 
justice  among  the  people,  for  the  people,  and 
by  the  people. 

The  Government  has  had  a criminal  code  that 
acted  directly  upon  the  people,  upon  whom 
alone  it  could  act.  That  has  not  been  an  inva- 
sion of  the  rights  of  the  States  ; on  the  contrary, 
it  has  been  in  aid  of  the  good  order  and  stabil- 
ity of  the  society  of  the  States,  and  at  the  same 
time  the  States  by  their  own  laws  and  in  their 
own  methods  and  through  their  own  courts 
have  punished  the  same  classes  of  offenses  ; 
and  the  Supreme  Court  of  the  United  States 
has  more  than  once  been  called  upon  to  decide 
whether  a State  could,  in  view  of  the  fact  that 
the  United  States  had  a code  against  a particu- 
lar crime,  also  make  the  same  act  a crime  ; 
and  it  has  always  been  decided  that  the  sover- 
eignty of  the  two  governments  was  in  these  re- 
spects independent  and  concurrent ; that  they 
both  could  act  over  the  subjects  that  were  com- 
mitted to  them,  and  therefore  that  a citizen 
might  properly  be  punished  for  violating  a 
State  law  and  a United  States  law  in  doing  the 
same  act. 

We  have  had  that  as  to  passing  counterfeit 
money.  The  State  of  Ohio  had  a statute  against 
passing  counterfeit  money.  A man  was  indicted 
under  it,  and  he  defended  upon  the  ground  that 
that  was  a crime  by  United  States  law  and  that 
the  jurisdiction  of  the  United  States  over  it  was 
exclusive.  The  Supreme  Court  of  the  Uni- 
ted States  decided  that  the  State  had  a perfect 
right  to  pass  laws  against  counterfeiting  money 
as  well  as  against  the  passing  of  counterfeit 
money.  Afterward  a man  was  indicted  under 
the  laws  of  the  United  States  for  passing  coun- 
terfeit money ; not  to  punish  him  in  the  lan- 
guage of  the  Constitution  for  counterfeiting 
coin,  but  out  of  the  language  of  the  Constitu- 
tion to  punish  him  for  uttering  counterfeit  coin 
or  a counterfeit  note,  whatever  it  may  have 
been  ; and  the  question  was  again  made  that 
the  United  States  had  no  right  to  invade  the 
function  of  a State  and  punish  the  passing  of 
counterfeit  coin  because  the  Constitution  did 
not  name  that,  and  the  State  laws  operated 
upon  it.  Again  the  Supreme  Coqrt  of  the 
United  States  decided  that  it  was  perfectly 
within  the  constitutional  power  of  Congress 
to  do  that  thing. 


So,  sir,  as  to  the  fugitive  slave  law.  There 
the  Constitution  had  not  declared,  in  terms, 
whose  duty  it  should  be  to  see  to  its  enforce- 
ment. The  United  States  had  passed  a com 
plete  code  upon  the  subject.  The  State  of 
Illinois  had  passed  code  upon  the  subject, 
and  had  provided  for  the  punishment  of  any 
person  who  should  harbor  or  secrete  a fugitive 
slave;  and  the  suggestion  was  ma.de  that  my 
friend  from  Illinois  made  the  other  day,  that 
this  was  changing  the  whole  character  of  the 
Government  to  have  the  States  interfere  where 
the  United  States  could,  or  to  have  the  United 
States  interfere  where  the  States  could.  But 
the  court  say : 

“But  admitting  that  the  plaintiff  in  error  may  be 
liable  to  an  action  under  the  act  of  Congress  for  the 
same  acts  of  harboring  and  preventing  the  owner 
from  retaking  his  slave,  it  does  not  follow  that  he 
would  be  twice  punished  for  the  same  offense.  An 
offense,  in  its  legal  signification,  means  the  trans- 
gression of  a law.  A man  may  be  compelled  to  make 
reparation  in  damages  to  the  injured  party,  and  be 
liable  also  to  punishment  for  a breach  of  the  public 
peace  in  consequence  of  the  same  act;  and  may  be 
said,  in  common  parlance,  to  be  twice  punished  for 
the  same  offense.  Every  citizen  of  the  United  States 
is  also  a citizen  of  a State  or  Territory.  He  may  be  | 
said  to  owe  allegiance  to  two  sovereigns,  and  may  be 
liable  to  punishment  for  an  infraction  of  the  laws 
of  either.  The  same  act  may  be  an  offense  or  trans- 
gression of  the  laws  of  both.  Thus,  an  assault  upon 
the  marshal” — 

Here  comes  this  dreadful  trouble  again  about 
assaulting  the  marshal  while  in  the  perform- 
ance of  his  duty — 

“ Thus,  an  assault  upon  themarshal  of  the  United 
States,  and  hindering  him  in  the  execution  of  legal 
process,  is  a high  offense  against  the  United  States, 
for  which  the  perpetrator  is  liable  to  punishment; 
and  tho  same  act  may  be  also  a gross  breach  of  the 
peace  of  tho  State,  a riot,  assault,  or  a murder,  and 
subject  the  same  person  to  a punishment,  under  the 
State  laws,  for  a misdemeanor  or  felony.  That 
either  or  both  may  (if  they  see  fit)  punish  such  an 
offender  cannot  be  doubted.  Yet  it  cannot  be  truly 
averred  that  t >e  offender  has  been  twice  punished 
for  the  same  offense;  but  only  that  by  one  act  he 
has  committed  two  offenses,  for  each  of  which  he  is 
justly  punishable,  lie  could  not  plead  the  punish- 
ment by  one  in  bar  to  a conviction  by  tho  other; 
consequently,  this  court  has  decided,  in  the  case  of 
Fox  vs.  The  State  of  Ohio,  (5  IIow.,  432,)  that  a State 
may  punish  the  offense  of  uttering  or  passing  false 
coin,  as  a cheat  or  fraud  practiced  on  its  citizens; 
and  in  tho  case  of  the  United  States  vs.  Marigold, 
(9  How.,  5(50.)  that  Congress,  in  tho  proper  exercise 
of  its  authority,  may  punish  the  satno  act  as  an 
offense  against  the  United  States.”  (Moore  vs.  The 
People  of  the  State  of  Illinois,  14  Howard,  19,  20.) 

Now,  sir,  I think  I have  demonstrated, 
though  I have  taken,  perhaps,  too  much  time 
to  do  it,  that  over  all  the  rights  and  over  all 
the  duties  and  over  all  the  guarantees  that  the 
Constitution  of  the  United  States  enumerates, 
the  power  of  the  United  States,  by  legislation, 
by  punishment,  by  any  of  the  methods  which 
legislation  may  resort  to,  to  enforce  constitu- 
tional duties  and  obligations  may  and  must  act 
directly  upon  the  citizen  ; and  that  it  is  entirely 
immaterial  whether  the  State  may  or  can  do 
the  same  thing  for  the  same  act  or  not  ; and, 
therefore,  that  it  is  no  objection  to  the  consti- 
tutional exercise  of  power  by  Congress  that  the 
States  themselves  in  the  case  of  these  disor- 
ders in  the  South  may,  if  they  will,  punish  the 


same  things  according  to  their  own  laws.  This 
has  been  carried  so  far  in  the  statutes  of  the 
United  States  passed  by  the  founders'of  the 
Government  that  in  cases  of  admiralty  and  mari- 
timejurisdiction, (which  would  seem  by  the  Con- 
stitution to  have  been  exclusively  confided  to 
the  national  authority  and  the  national  courts,) 
the  ancient  statutes  conferring  jurisdiction  and 
setting  up  courts  to  practice  that  law,  expressly 
provided  that  the  acts  of  Congress  and  the  author- 
ity of  the  courts  under  them  should  not  be  con- 
strued to  exclude  the  common  law  or  prohibit 
the  courts  of  the  States  to  grant  relief  in  all 
those  cases  in  which  the  common  law  was 
competent  to  afford  it.  So  that  to-day,  although 
the  courts  of  the  United  States  in  one  form  of 
procedure — procedure  in  rem — have  exclusive 
jurisdiction  over  maritime  matters,  the  com- 
mon-law courts  of  every  State  have  ample 
jurisdiction  of  the  same  matters,  by  suits  in 
personam  between  parties  ; and  yet  we  are  told 
that  this  attempt  of  the  United  States  to  pun- 
ish crimes  of  this  character  is  a new  thing; 
that  we  are  changing  the  character  of  the  Gov- 
ernment by  endeavoring  to  repress  tumults 
and  insurrections  which  are  leveled  against 
citizens  in  order  to  deprive  them  of  that  equal 
protection  and  that  right  to  seek  justice  which 
the  Constitution,  from  the  nature  of  it,  guar- 
antees to  them,  and  which  it  in  express  words 
gives  to  them. 

Now,  sir,  let  us  see  what  rights  these  new 
amendments  have  given  to  citizens;  and  I am 
sorry  to  have  troubled  the  Senate  so  long  in 
discussing  this  general  principle;  but  inas- 
much as  the  whole  constitutionality  of  our 
legislation  has  been  made  to  turn,  as  1 have 
said,  upon  the  denial  of  our  right  to  exercise 
direct  powers  over  the  citizens  as  such,  1 have 
felt  justiSed  in  demonstrating,  as  1 think  I 
have,  from  history,  from  the  Constitution, 
from  the  statutes,  and  from  the  decisions,  that 
this  pretense  is  a sheer  delusion. 

Now,  what  do  these  amendments  provide? 

The  thirteenth  amendment  provided  that 
there  should  be  neither  slavery  nor  involun- 
tary servitude  except  for  crime.  That  was  a 
prohibition.  It  did  not  name  a Slate  at  all. 
Under  the  old  decisions,  to  which  I have 
referred,  protecting  life,  liberty,  and  property 
against  invasion  without  due  process  of  law, 
Democratic  Senators  and  my  friend  from 
Illinois  might  have  contended  that  this  was 
only  a prohibition  against  slavery  under  the 
authority  of  the  Uuited  States,  and  that  any 
State  could  now  deprive  a citizen  of  his  liberty 
for  the  reason  that  the  thirteenth  amendment 
only  operated  as  against  the  Government  of 
the  United  States  as  it  was  held  under  the  old 
one  which  I have  read. 

But  that  has  not  been  contended,  and  every- 
body knows  that  it  would  be  scouted,  for  there 
is  added — if  there  could  have  been  any  doubt 
about  it  before — the  provision  that  “ Congress 
shall  have  power  to  enforce  this  article  by 
appropriate  legislation.”  Therefore,  wheu  the 
prohibition  against  slavery  was  enacted  and 


11 


the  power  was  expressly  put  into  the  hands  of 
Congress  to  carry  out  that  enactment,  to  see 
that  it  was  made  effectual,  was  it  not  the  right 
and  the  duty  of  Congress,  too,  to  the  last  point 
of  its  power,  to  protect  the  liberty  of  all  people 
wherever  it  might  be  assailed  by  that  form  of 
crime?  Nobody  questions  it.  Even  my  hon- 
orable friend  from  Ohio  who  sits  farthest  from 
me  [Mr.  Tiiurman]  I think  will  admit,  I be- 
lieve he  did  the  other  day — I do  not  know 
that  the  conversation  was  public,  although  it 
was  a business  conversaiion — ‘that  under  the 
thirteenth  amendment  there  is  no  question  but 
that  Congress  may  take  all  necessary  means  to 
prevent  the  reestablishment  of  slavery. 

Mr.  THURMAN.  Will  my  friend  allow  me 
to  state  exactly  what  my  view  is?  1 have 
already  stated  it,  although  not  in  this  debate. 
In  my  judgment,  that  provision  that  Congress 
shall  have  power  by  appropriate  legislation  to 
give  effect  to  this  article  which  is  found  in  each 
of  the  thirteenth,  fourteenth,  and  fifteenth  arti 
clesof  amendment  confers  no  power  upon  Con- 
gress that  would  not  exist  in  Congress  if  those 
words  were  stricken  out  of  the  Constitution. 
They  are  not  a particle  broader  than  the  clause 
in  the  original  Constitution  that  Congress  shall 
have  power  to  pass  all  laws  necessary  and 
proper,  &c. ; and  this  very  word  “appropriate  ” 
is  derived  from  the  opinion  of  Judge  Marshall 
in  McCulloch  vs.  Maryland,  in  which  he  says 
that  Congress,  under  that  authority  to  pass  all 
proper  and  necessary  laws,  could  use  any  ap 
propriate  means;  and  it  is  also  said  in  the  same 
case  that  Congress  would  have  all  the  powers 
that  it  now  has  if  that  clause  itself  were  left 
wholly  out  of  the  Constitution. 

Mr.  EDMUNDS.  Very  well  ; suppose  that 
is  so,  inasmuch  as  the  clause  is  in,  have  we  not 
all  the  power  that  it  gives?  That  is  the  point. 
If  we  had  the  power,  supposing  the  clause  were 
out,  l hope  my  honorable  friend  does  not  con- 
tend that  we  have  it  not  because  the  clause  is 
in.  Does  he  ? 

Mr.  THURMAN.  No,  I do  not. 

Mr.  EDMUNDS.  Very  good;  then  my  pur- 
pose is  answered  ; and  let  me  tell  my  friend 
that  there  is  a wide  distinction,  if  he  will  study 
the  Constitution  a little  more  closely,  between 
this  phraseology  of  the  second  section  of  the 
thirteenth  article  and  the  old  phraseology. 
This  says  that  “ Congress  shall  have  power  to 
enforce  t his  article  by  appropriate  legislation.” 
That  said  that  Congress  should  have  power  by 
all  necessary  legislation  to  carry  into  effect  the 
powers  therein  granted.  The  prohibitions  upon 
the  States  were  not  granted  powers;  they  were 
denied  powers ; not  denied  powers  of  the 
national  Government,  but  denied  powers  of 
the  States ; and  therefore  the  strict  language 
of  the  old  grant  of  power  to  legislate  did  not 
cover  those  cases  at  all. 

Mr.  THURMAN.  The  Senator  will  pardon 
me  for  saying  that  I think  I could  convince 
him  that  there  is  no  difference;  but  it  would 
require  an  argument,  and  I do  not  want  to 
interrupt  his  speech. 


Mr.  EDMUNDS.  My  friend  knows  that 
when  he  goes  to  an  argument  or  threatens  one 
I am  always  convinced  at  once.  [Laughter.] 
But  the  chief  point  now  is,  as  my  friend  agrees, 
that  here  is,  whether  necessary  or  unnecessary, 
an  express  grant  of  power  to  us,  the  national 
Legislature,  to  defend  the  rights  of  citizens 
of  the  United  States  and  all  inhabitants  of 
the  country,  whether  citizens  or  not,  against 
slavery.  Now,  how  are  you  going  to  do  it?  Are 
you  going  to  do  it  by  passing  a proclamation 
to  the  State  of  Georgia  when  she  may  choose 
to  reenslave  her  negroes?  Or,  are  you  going 
to  do  it  by  making  war  upon  her?  Or,  are  you 
going  to  do  it,  as  we  by  this  bill  do  it  under 
the  fourteenth  amendment,  by  declaring  that 
any  man  who  infracts  that  article  shall  be 
punished  ? 

I take  it,  there  is  only  one  answer  to  that 
question.  If  any  State  should  undertake  to 
set  up  slavery,  or  any  man  in  a State  should 
undertake  to  set  it  up,  (because  the  old  theory 
was  that  the  States  did  not  set  it  up  at  all, 
that  it  was  a kind  of  hereditary  personal  right 
that  came  down  from  the  patriarchs  in  some 
undefined  way,)  my  friend  from  Ohio  would  be 
among  the  inostearnestopponents  of  any  legis- 
lation which  should  address  itself  to  the  State 
of  Georgia.  He  would  say,  “The  State  of 
Georgia  is  not  in  fault;  she  cannot  as  a State 
be  in  fault  at  all,  because  her  officers,  her 
Legislature,  her  Governor,  her  judiciary,  all 
together  as  such,  have  no  power  or  authority 
to  do  anything  of  the  kind,  and  their  acts, 
therefore,  are  utterly  void,  and  the  people  in 
their  collective  capacity  are  not  responsible 
for  them  at  all ; and  you  have  no  right  to  make 
war  upon  the  people  because  their  officers, 
their  mere  agents  whom  they  have  selected, 
have  exceeded  their  jurisdiction  and  author- 
ity. Go,”  he  would  say,  “ to  the  guilty  ones. 
Address  yourselves  to  the  criminal  who  has  vio- 
lated this  article  of  the  Constitution  and  the 
statutes  of  the  United  States  by  doing  that 
which  the  Constitution  forbids.” 

Thus  you  will  have  enforced  the  thirteenth 
article  of  amendments  and  secured  liberty  and 
punished  slavery.  It  would  be  an  extreme 
case  which  could  justify  any  other  answer; 
and  inasmuch  as  slavery  is  so  odious  to  man- 
kind now,  gentlemen  of  all  political  shades 
would  acquiesce,  and  there  would  not  be  a 
debate  or  a party  division  upon  the  passage  of 
a bill  which  should  provide  forthe  punishment 
of  the  act  of  reducing  any  man  to  slavery, 
under  the  thirteenth  amendment.  Nobody,  I 
venture  to  say,  would  have  been  heard  to  open 
his  lips  to  condemn  such  legislation,  however 
much  some  portion  of  the  people  might  desire 
to  see  slavery  restored,  or  to  question  the  pro- 
priety or  the  constitutionality  of  enacting  it. 

But  when  you  take  the  next  step  and  come 
to  the  next  article  of  the  Constitution,  which 
secures  the  rights  of  white  men  as  much  as  of 
colored  men,  you  touch  a tender  spot  in  the 
party  of  our  friends  on  the  other  side.  If  you 
*■  wish  to  employ  the  powers  of  the  Constitution 


12 


to  preserve  the  lives  and  liberties  of  white 
people  against  attacks  by  white  people,  against 
rapine  and  murder  and  assassination  and  con- 
spiracy, contrived  in  order  to  drive  them  from 
the  States  in  which  they  have  been  born  or 
have  chosen  to  settle,  contrived  in  order  to 
deprive  them  of  the  liberty  of  having  a political 
opinion,  contrived  for  the  purpose  of  driving 
them  from  a city  or  town  where  they  have 
endeavored  to  carry  on  a peaceable  and  lawful 
business  or  to  cultivate  the  soil,  then  the  whole 
strength  of  the  Democratic  party  and  all  its 
allies  is  arrayed  against  the  constitutionality 
and  propriety  of  such  an  act. 

Sir,  what  did  the  fourteenth  amendment  say, 
taking  it  a little  in  detail?  The  first  section 
of  it  is  all  that  I need  to  read.  It  has  four  dis- 
tinct and  separate  clauses.  The  first  is  the 
one  upon  which  I haye  commented,  and  I will 
now  only  state  it : 

‘‘All  persons  born  or  naturalized  in  the  United 
States,  and  subject  to  the  jurisdiction  thereof,  are 
citizens  of  the  United  States,  and  ofthe  State  wherein 
they  reside.” 

I have  said  prematurely,  in  answer  to  my 
friend  from  Illinois,  and  out  of  the  order  of 
the  proper  discussion  of  this  subject,  all  that 
I will  take  the  time  to  say  about  it.  The  next 
is  the  provision  that: 

‘‘No  State  shall  make  or  enforce  any  law  which 
shall  abridge  the  privileges  or  immunities  of  citizens 
of  the  United  States.” 

There  is  a direct  prohibition  to  the  State;  it 
is  a direct  prohibition  against  the  making  of 
a law  ; it  is  a direct  prohibition  against  the 
enforcing  of  a law ; and  that  perhaps  brings  me 
to  the  question  here  as  well  as  anywhere  else, 
what  is  a State  ? 

My  honorable  friend  from  Ohio  [Mr.  Thur- 
man] said  yesterday,  my  friend  from  New 
Jersey  [Mr.  Stockton]  said  the  other  day,  and 
everybody  says  on  that  side,  that  a State  is  the 
legislative  department,  and  that  all  the  pro- 
hibitions and  commands  of  this  section  are 
addressed  to  the  law  making  power  of  a State, 
and  that  any  omission  of  the  Governor  to  give 
rights  under  his. department,  any  omission  of 
the  judiciary  to  grant  rights  under  their  de- 
partment, any  violation  by  either  of  these 
departments  of  a State  government  of  any 
right  secured  by  this  section,  i3  not  a violation 
by  the  State,  for  that  must  be  by  the  law-making 
power.  Now,  apply  it  to  this  : 

“ No  State  shall  make  or  enforce  any  law  which 
shall  abridge  the  privileges  or  immunities  of  citi- 
zens ofthe  United  States.” 

Not  “abridge  the  privileges  and  immunities 
of  citizens  of  one  State  going  to  another,” 
as  the  old  language  was,  but  “which  shall 
abridge  the  privileges  and  immunities  of  citi- 
zens of  the  United  States,”  whether  they  are 
citizens  of  one  State  or  another — absolute 
and  complete.  But  what  is  the  State?  Is  it 
the  Legislature?  It  is  as  to  making  law,  with 
the  aid  of  a Governor.  As  to  enforcing  a law, 
is  the  Legislature  the  State?  How  do  Legis- 
latures enforce  laws  ? I had  been  taught  in 
my  little  reading  and  experience  in  the  pro- 


fession of  the  law  that  the  enforcement  of  the 
law  belonged  to  the  judiciary  and  the  execu- 
tive combined.  I had  never  heard  before  that 
it  was  a part  of  the  legislative  functions  of  a 
government  to  enforce  laws;  and  yet.  if  my 
friend  is  right,  although  the  very  word  “ en- 
force” is  used  in  this  prohibition,  it  is  after 
all  only  a command  to  the  members  of  the 
Legislature  that  they  shall  not  enforce  any 
such  law  ; and  therefore  the  executive  and 
the  judicial  departments  of  the  State  are  not 
prohibited  from  enforcing  any  law  they  please 
which  violates  the  privileges  and  immunities 
of  citizens  of  the  United  States. 

Why,  Mr.  President,  this  is  absurd  ; it  flies 
in  the  face  ofthe  very  language,  it  flies  in  the 
face  of  everything  we  know  ofthe  nature  and 
constitution  of  a government,  be  it  State  or 
national. 

Mr.  THURMAN.  Will  the  Senator  allow 
me  to  interrupt  him  at  this  point? 

Mr*  EDMUNDS.  With  the  greatest  pleasure. 

Mr.  THURMAN.  I do  so  because  the  Sen- 
ator has  attributed  to  me  quite  a mistake. 

Mr.  EDMUNDS.  I thought  it  was  quite  a 
mistake. 

Mr.  THURMAN.  Either  the  Senator  did 
not  understand  me,  or  1 do  not  understand 
him.  The  language  is,  “ no  State  shall  make 
or  enforce  any  law  which  shall  abridge  the 
privileges  and  immunities  of  citizens.”  He 
will  admit  at  once  that  it  is  only  the  legislative 
power  in  a State  which  can  make  a law.  He 
will  also  admit  at  once  that  the  courts  and  the 
executive  power  of  the  State  do  not  enforce 
laws’  that  are  not  made  by  the  State,  or  not 
recognized  as  law  by  the  State,  being  the 
common  law  of  the  State.  Therefore,  when  it 
is  said  there  that  “no  State  shall  make  or 
enforce  any  law,”  it  can  only  apply  to  laws 
which  are  made  by  the  Legislature  of  the  State, 
or  to  the  common  law' of  the  State. 

Mr.  EDMUNDS.  I do  not  see  that  that 
changes  it.  That  is  exactly  what  I said.  Of 
course,  if  the  Legislature  do  not  make  a law 
which  abridges  the  privileges  or  immunities 
of  citizens,  then  there  is  no  such  law  that  the 
other  departments  of  the  State  government 
can  enforce.  But  suppose  the  Legislature 
does  make  a law  which  abridges  the  privileges 
of  a citizen,  and  suppose  that  the  judicial  and 
executive  departments  of  the  State  govern- 
ment undertake  to  put  it  in  force;  what  then? 
According  to  his  argument  you  can  only  pun- 
ish the  Legislature;  you  can  make  war  upon 
"them  or  you  can  indict  them,  or  do  whatever 
our  friends  on  the  other  side  think  would  be 
adequate  to  the  end  ; and  I should  like  any  one 
of  them  to  be  kind  enough  to  point  out  what 
he  would  do  in  sucn  a case.  What,  then,  was 
the  use  of  putting  in  this  prohibition  against 
enforcement?  None  at  all  in  that  case.  I 
repeat,  with  all  respect  to  my  friend,  that  an 
argument  of  that  kind  borders,  if  he  will  par- 
don me  for  saying  so,  upon  absurdity. 

The  enforcement  of  laws,  as  I have  said, 
does  not  belong  to  the  legislative  department 


13 


at  all  ; it  belongs  to  the  other  departments  ; 
and  as  to  the  enforcement  of  law,  the  other 
departments  are  the  government;  they  are 
the  whole  government.  Why,  sir,  what  a 
position  we  should  be  in  if  this  honorable 
Senator’s  position  were  sound  ! Look  at  our 
case  with  England  during  the  rebellion.  There 
were  the  acts  of  Parliament  which  denounced 
punishment  against  the  fitting  out  of  expeditions 
against  friendly  Powers  ; there  was  the  execu- 
tive department,  the  Crown,  armed  with  all  its 
constables  and  sheriffs  and  its  military  power; 
there  was  the  judiciary  in  the  full  exercise  of 
its  functions.  Through  the  fault  of  the  Execu- 
tive and  through  the  fault  of  the  judiciary 
expeditions  were  fitted  out;  they  did  make 
war  upon  our  commerce;  they  did  violate  our 
rights.  “Now,”  says  my  friend,  “the  Crown  and 
the  judiciary  of  England  are  not  the  Govern- 
ment ; they  are  to  blame,  but  they  are  not  the 
State;  the  duty  of  executing  the  statutes  of 
England  does  not  belong  to  them,  or  if  it  did, 
they  are  not  responsible  for  not  doing  it;  the 
power  of  England  is  in  the  Parliament ; and 
inasmuch  as  Parliament  had  done  all  that  was 
necessary  for  it  to  do  before,  as  the  statutes 
were  there,  England  is  not  responsible  at  all.” 
That  doctrine  cannot  be  maintained.  A State 
is  a corporation  ; it  exists  only,  in  contempla- 
tion of  law,  as  an  organized  thing;  and  it  is 
manifested,  represented  entirely,  and  fully  in 
respect  to  every  one  of  its  functions,  by  that 
department  of  its  government  on  which  the 
execution  of  those  functions  is  respectively 
devolved.  Therefore,  if  it  is  the  duty  of  the 
executive  and  judicial  departments  of  a State 
to  enforce  a law  and  they  do  not  enforce  it, 
the  State  does  not  enforce  it.  If  it  is  their 
duty  not  to  enforce  a law  and  they  do  enforce 
it,  it  is  the  State  that  enforces  it. 

The  next  provision  is  the  one  that  “no  State 
shall  deprive  any  person  of  life,  liberty,  or 
property  without  due  process  of  law.”  Under 
the  old  Constitution  a similar  provision  existed, 
not  using  the  word  “State,”  and,  as  i have 
already  stated,  the  courts  decided  that  that 
prohibition  did  not  apply  to  the  States  at  all, 
and  that  therefore  it  only  applied  to  the  Uni 
ted  States.  Hence  this  clause  in  the  amend 
ment,  which  also  Congress  is  to  enforce  by 
appropriate  legislation,  “no  State  shall  de- 
prive any  person  of  life,  liberty,  or  property, 
without  due  process  of  law.”  So  that,  taking 
the  two  clauses  together,  the  old  one  and  the 
new  one,  you  have  in  the  Constitution  of  the 
United  States  a sweeping  declaration  that 
neither  the  United  States  nor  any  one  under 
them,  nor  any  State  nor  any  one  under  it, 
shall  deprive  any  person  of  life,  liberty,  or 
property,  without  due  process  of  law.  Is  not 
that,  then,  as  complete  as  any  language  can 
make  it?  Does  it  not  cover  all  the  power  of 
the  nation  in  every  department  of  the  Govern- 
ment, both  national  and  State?  Nobody  can 
dispute  it;  it  says  so  in  terms.  Taking  the 
two  together,  the  States  are  prohibited,  the 
nation  is  prohibited,  everybody  is  prohibited 


from  denying  the  rights  of  citizens  to  life,  lib- 
erty, and  property,  without  the  regular  aud 
due  process  of  law — constitutional  iaw. 

Now  we  come  to  the  next  clause,  “Nor  deny 
to  any  person  within  its  jurisdiction  the  equal 
protection  of  the  laws.”  And  here,  again, 
after  this  clause,  follows  the  potent,  although 
my  friend  from  Ohio  and  my  friend  from  Illi- 
nois think  the  unnecessary,  declaration  that 
“ Congress  may  enforce  this  provision  by  appro- 
priate legislation.’'  Now,  what  is  a State  to 
do?  It  is  not  to  deny  to  any  person  within  its 
jurisdiction  the  equal  protection  of  its  laws; 
not  the  equal  making  of  its  laws,  which  had 
been  provided  for  before,  not  the  right  to  life, 
liberty,  and  property,  which  had  been  provided 
for  before;  but  it  is  not  to  deny  the  protection 
of  its  laws. 

What  is  protection  of  law?  Do  I need  to 
weary  the  patience  of  the  Senate  with  under- 
taking to  define  what  is  the  protection  of  the 
law?  I take  it  any,  the  humblest,  citizen  in 
the  land  knows  what  the  protection  of  the  law 
is.  The  meanest  criminal  in  the  land  knows 
what  it  is  to  violate  the  protection  of  the  law. 

I shall  assume,  therefore,  that  if  there  has  been 
any,  or  if  there  may  be  any  of  the  offenses 
named  in  this  act  committed  in  any  State,  those 
offenses  will  deprive  citizens  of  the  United 
States  and  every  one  else  upon  whom  they  are 
committed  of  the  protection  of  the  law,  unless 
the  criminal  who  shall  commit  those  offenses 
is  punished  and  the  person  who  suffers  receives 
that  redress  which  the  principles  and  spirit  of 
the  laws  entitle  him  to  have. 

“No  State  is  to  deny,”  say  the  gentlemen. 
That  means,  they  say,  the  State  in  its  collect- 
ive capacity.  VVhat  part  of  the  State?  My 
friend  from  Ohio  says  the  Legislature.  Then 
the  Legislature,  reading  it  in  that  way,  shall 
not  deny  to  any  person  within  its  jurisdiction 
the  equal  protection  of  the  laws,  it  had  said 
that  before.  The  very  second  provision  in 
this  section  declares  that  no  State  shall  make 
or  enforce  any  law  which  shall  interfere  with 
the  privilege  and  immunity  of  a citizen  of 
the  United  States;  and  everybody  agrees  that 
that  privilege  and  that  immunity  is  the  very 
same  thing  that  is  mentioned  in  other  language 
in  the  next  clause — the  privilege  of  life,  the 
privilege  of  liberty,  the  privilege  of  the  ac- 
quirement of  property.  So  that,  on  the  theory 
of  my  friend  from  Ohio,  a great  constitutional 
amendment,  carefully  prepared,  discussed  in 
both  branches  of  Congress,  passed  by  two 
thirds  of  each  House,  ratified  by  three  fourths 
of  the  States,  committed  the  awkward  blunder 
of  stating  over  again,  in  obscure  language, 
what  it  had  stated  in  its  second  provision  only 
four  lines  above  in  clear  language  : that  it  had 
said  that  no  State  (which  can  only  act  through 
its  Legislature)  shall  make  any  law  which  shall 
do  this  thing,  and  when  it  had,  then,  coming 
to  the  last  clause,  had  restated  the  same  thing 
in  vaguer  language,  that  they  should  not  deny 
to  any  person  the  equal  protection  of  the  law. 
That  cannot  be  maintained.  A Legislature 


14 


act'p-g  directly  does  not  afford  to  any  person 
the  protection  of  the  law;  it  makes  the  law 
under  which  and  through  which,  being  exe 
cuted  by  the  functionaries  appointed  by  the 
State  for  that  purpose,  citizens  receive  the 
protection  of  the  law. 

But  they  say  this  is  merely  a prohibitory  sec- 
tion, a mere  denial  of  the  right  of  a State  to 
interfere  with  life,  liberty,  and  property,  and 
to  prevent  due  redress.  What  is  a denial,  Mr. 
President  ? Is  it  merely  a refusal  in  the  sense 
of  a man’s  appealing  to  the  Legislature  Tor  a 
law  and  being  told  that  he  cannot  have  it;  or 
what  is  it?  It  is  a security  to  the  citizen  that 
he  shall  have  the  protection  of  law.  Although 
the  word  is  negative  in  form,  it  is  affirmative 
in  its  nature  and  character.  It  grants  an  abso- 
lute right,  and  let  me  tell  my  honorable  friends 
who  deny  it  that  it  is  not  a chance  word  ; it 
has  been  heard  of  in  the  law  before:  it  has  a 
history  connected  with  human  liberty  ever  since 
in  Anglo  Saxon  races  human  liberty  and  hu- 
man rights  have  existed.  The  very  word  has 
come  down  from  the  earliest  constitutions, 
from  the  very  earliest  written  constitution  of 
civilized  liberty,  to  us  as  a word  of  art  which 
carries  in  it  an  obligation  of  a supreme  and 
universal  affirmation — a character  which  makes 
it  the  duty  of  every  court  and  every  govern- 
ment over  every  people  which  are  entitled  to 
its  protection  to  see  that  they  have  it. 

New  let  us  see.  Here  is  the  ancient  charter 
of  liberty  which  the  bold  barons,  as  you  know, 
our  English  ancestors,  wrested  from  King  John; 
the  rich  aud  perpetual  product,  like  our  own 
amendments,  of  a great  struggle  for  liberty  ; 
and  in  it  are  contained,  in  order  to  grant  to 
the  citizen  this  very  protection,  and  in  order 
to  secure  to  him  the  duty  of  all  the  courts  of 
all  England  to  give  it,  as  they  have  done,  these 
very  words:  “ Nulli  vendemus , nulli  nega- 
bimus , aut  differemus  rectum  vel  justitiamN 
“ We  will  sell  to  no  man,  we  will  not  deny 
or  defer  to  any  man  either  right  or  justice.” 

Under  that,  not  by  force  of  parliamentary 
legislation,  but  as  giving ever-affirmative  rights, 
performing  an  affirmative  duty,  the  first  slave 
that  set  his  foot  on  English  soil  was  set  free, 
because  the  courts  could  not  deny  to  him  that 
justice  which  that -charter  said  should  not  be 
denied.  And  under  it,  as  I have  said,  in  every 
civilized  State,  comprising  all  the  States  of  our 
nation,  and  comprising  that  great  common- 
wealth, or  kingdom  as  I ought  strictly  to  say, 
from  which  we  derived  our  law  and  our  his- 
tory for  eight  hundred  year§,  until  now  it  is 
questioned  for  the  first  time,  it  has  been  the 
recognized  and  bounden  duty  of  all  courts,  and 
of  ail  executive  officers  intrusted  with  the  ad- 
ministration of  justice  and  the  law,  to  give  that 
which  the  citizen  was  entitled  to,  to  execute 
justice  and  afford  protection  against  all  forms 
of  wrong  and  oppression.  Why,  sir,  it  has 
blazed  on  the  forehead  of  constitutional  liberty 
from  that  day  to  this.  And  yet,  now  being 
adopted  as  the  greatest  security  settled  through 
the  course  of  centuries  as  a protecting,  as  an  * 


affirmative  right  in  the  citizen — those  interests 
of  liberty  and  property  and  life  to  which  he  is 
entitled — now  for  the  first  time  it  is  attempted 
to  be  frittered  away  by  the  statement  that  it  is 
a mere  negative  declaration,  a kind  of  admon- 
itory prohibition  to  a State,  and  that  Congress 
is  to  invade  the  rights  of  the  States  and  the 
liberties  of  the  people  when,  these  rights  being 
denied,  when  criminals  go  unpunished  by  the 
score,  by  the  hundred,  and  by  the  thousand, 
when  justice  sits  silent  in  her  temple  in  the 
States,  or  is  driven  from  in  altogether,  it  in- 
terposes in  their  behalf ; when  the  Government 
of  the  whole  people,  through  their  laws  and  tri- 
bunals, takesin  its  hand  this  ancient  monument 
and  guarantee  of  justice  now  found  in  its  Con- 
stitution and  applies  it  as  it  always  has  been 
applied.  Wh$,  sir,  if  I were  in  any  other  place 
I should  say — 

“ 0 Shame,  where  is  thy  blush  ?” 

I am  astounded,  sir,  that  what  might  be 
called  party  zeal,  an  effect  of  a kind  of  tacit 
alliance  with  these  misguided  southern  men, 
(not,  I hope,  in  their  crimes,  but  for  the  bale- 
ful objects  of  their  joint  political  future,) 
should  have  blinded  our  Democratic  friends 
to  the  history  of  enactments  of  this  character, 
and  should  have  led  them  further  than  on 
sober  reflection  they  will  willingly  go,  and  fur- 
ther than  the  people  on  reflection  will  be 
willing  to  let  them  go. 

Therefore,  I take  it,  Mr.  President,  that  I 
need  not  occupy  much  time  in  saying  that 
whatever  this  provision  of  the  fourteenth  arti- 
cle guaranties  to  a citizen,  that  the  citizen  is 
entitled  to  have;  and  if  he  is  entitled  to  have 
it,  how  is  he  to  have  it?  The.  section  answers, 
he  is  to  have  it,  in  the  language  of  the  Con- 
stitution, which  is  the  voice  of  the  people, 
through  the  'legislation  of  this  body.  The 
people  have  declared  that  he  shall  have  this 
protection.  The  people  have  declared  that.the 
State  authorities  shall  not  deny  it  to  him.  The 
people  have  declared  that  it  is  the  solemn  duty 
of  Congress  to  see  that  he  has  it  because  they 
have  decreed  that  “ Congress  shall  have  power 
to  enforce  the  provisions”  of  this  section  of 
this  clause  ‘ ‘ of  this  article  by  appropriate  legis- 
lation.” Therefore  the  Constitution  contem- 
plated that  whenever  an  occasion  should  arise 
where  it  was  necessary  to  protect  these  rights 
Congress  should  protect  them. 

It  is  impossible  to  resist  the  conclusion. 
Suppose  this  did  change  the  Government,  as 
my  friend  from  Illinois  appears  to  fear,  do  you 
not  rather  think,  Mr.  President,  that  it  is  a 
good  change?  If  the  Constitution  did  not 
before,  holding  a sovereignty  over  its  citizens, 
have  the  faculty  of,  through  its  legislative 
branch,  protecting  those  citizens  in  the  rights 
that  the  Constitution  gave* them,  the  rights 
which  a common  human  nature  gives  them, 
against  any  assault  by  any  State  or  under  any 
State  or  through  the  neglect  of  any  State,  then 
it  was  high  time,  for  the  honor  of  the  American 
name  and  for  the  rights  of  humanity,  that  the 
institutions  of  this  country  should  change. 


15 


If,  as  under  the  thirteenth  article,  slavery  was 
a constitutional  institution,  as  it  was  claimed 
before,  1 am  sure  the  people  will  not  be  alarmed 
that  a great  change  has  come  over  the  spirit 
of  this  Government;  and  instead  of  its  being 
a Government  of  slavery,  tolerated  or  upheld 
or  jinked  at,  it  has  become  a Government  of 
freedom;  that  instead  of  its  being  a Govern- 
ment which  should  suffer  the  local  authorities 
of  a State  to  deny  the  common  rights  of  citi- 
zens to  any  of  its  people,  it  has  become  a 
Government  in  which  the  national  power  has 
guarantied  it  to  them,  and  whjgh  it  is  the  duty 
of  the  national  power,  in  every  honorable  and 
in  the  most  exhaustive  sense,  to  see  is  fully 
and  fairly  enforced  and  made  a practical 
reality. 

If  this  is  the  Constitution  (and  how  it  can 
be  ot  herwise  in  the  lace  of  its  history  and  what 
it  says  is  more  than  a puzzle  to  me,  an  amaze- 
ment to  me;  if  this  is  the  Constitution)  which 
gives  to  our  people  a right  to  the  protection 
of  law,  and  it  is  a Constitution  which  makes 
it  our  duty  to  see  that  they  have  the  protec- 
tion of  law,  what  sin  are  we  committing  in 
endeavoring  to  legislate  so  that  they  shall  have 
it  ? None,  sir. 

And  now  what  do  we  propose  to  do?  Some 
peoplehaveimagined,  havestated,  orhinted,  or 
insinuated  in  their  observations  that  we  were 
making  war  upon  the  States  in  this  bill ; that  we 
were  overturning  the  judiciary  ; that  w'e  were 
resorting  to  new  methods.  That  is  a mistake, 
a misrepresentation.  The  bill,  likeall  bills  of 
this  character,  in  its  first  and  second  sections, 
is  a declaration  of  rights  and  a provision  for 
the  punishment  of  conspiracies  against  con- 
stitutional rights,  and  a redress  for  wrongs. 
It  does  not  undertake  to  overthrow  any  court. 
It  does  not  undertake  to  make  any  war.  It 
does  not  undertake  to  interpose  itself  out  of  the 
regular  order  of  the  administration  of  law.  It 
does  not  attempt  to  deprive  any  State  of  the 
honor  which  is  due  to  the  punishment  of  crime. 
It  is  a law  acting  upon  the  citizen  like  every 
other  law,  and  ft  is  a law  to  be  enforced  by 
the  courts  through  the  regular  and  ordinary 
processes  of  judicial  administration,  and  in 
no  other  way,  until  forcible  resistance  shall 
be  offered  to  the  quiet  and  ordinary  course 
of  justice. 

When  you  come  to  the  later  sections,  which 
are  in  aid  of  the  first,  you  have  the  simple 
and  ordinary  provision  in  the  third  that,  when 
the  laws  are  oppoted,  when  the  courts  are 
in  danger  of  being  unable  to  carry  out  their 
decrees,  to  arrest  and  punish  offenders,  the 
executive  arm  is  to  go  to  their  assistance,  is 
to  oppose  force  to  force,  as  is  done  in  every 
[ city  and  county  in  the  country  every  day, 
when  the  occasion  for  it  Occurs,  under  State 
laws  and  under  national  laws,  as  the  Senator 
from  California  himself  says  lie  demanded  to 
have  done  in  his  own  State  on  one  occasion 
by  the  troops  of  the  United  States.  When 
force  is  to  be  opposed  to  the  quiet  progress  of 
i the  law  the  arm  of  the  nation  is  to  resist  force 


with  force,  is  to  gather  up  the  offender  and 
turn  him  over  to  the  court  of  justice  for  trial. 
That  is  all  there  is  to  it.  We  are  not  attempt- 
ing to  overturn  the  judiciary  ; we  are  attempt- 
ing to  uphold  it.  We  are  not  attempting  to 
overthrow  the  Constitution  ; we  are  attempt  ing 
to  uphold  it.  We  are  not  attempting  to  inter- 
fere with  the  liberty  of  the  people,  unless  the 
liberty  to  commit  crime  is  the  liberty  of  the 
people ; we  are  attempting  to  protect  and 
uphold  it. 

The  fourth  section  troubles  some  of  ray  hon- 
orable friends  very  much  indeed.  It  is  said, 
in  the  first  place,  that  it  is  unconstitutional, 
because  it  authorizes  the  President  in  ceitaiu 
cases  named  to  suspend  the  writ  of  habeas 
corpus.  1 feel  very  clear  that  it  is  constitu- 
tional in  that  respect.  The  Supreme  Court 
of  the  United  States  have  decided,  contrary 
to  what  my  friend  from  Ohio  [Mr.  Thusman] 
had  supposed,  that  the  Congress  of  the  United 
States  may  delegate  to  the  President  the  power 
to  determine  when  an  exigency  occurs  which 
shall  call  for  the  execution  of  some  statute. 
They  do  delegate  powers  coustantly  ; not  legis- 
lative powers,  but  powers  to  act  in  a contin- 
gency which  the  Legislature  prescribes  or  pro- 
vides for  or  defines  in  advance.  That  was  the 
case  under  the  embargo  laws.  The  President 
has  no  power  to  lay  embargoes  or  to  relieve 
embargoes;  he  has  no  power  to  make  war; 
and  yet,  under  the  embargo  laws,  with  uni- 
versal acceptance  in  the  case  that  was  referred 
to  and  shown  to  gentlemen  the  other  day,  the 
Supreme  Court  of  the  United  Stales  unani- 
mously decided  that  it  was  competent  for  Con- 
gress to  vest  in  the  President  the  discretion  to 
determine  in  what  contingency  he  should,  in 
effect,  repeal  the  embargoes  and  in  what  con- 
tingency he  could  revive  them  again.  So  in 
12  Wheaton  is  a case  (Martin  vs.  Malt)  which, 
perhaps,  1 ought  to  refer  to  for  a moment. 
On  the  subject  of  exercising  the  military  power 
in  calling  forth  the  militia,  which  is,  in  the 
language  of  the  Constitution,  Confided  to  Con- 
gress in  the  provision  authorizing  it  to  pro- 
vide for  suppressing  insurrections  and  repel- 
ling invasions,  on  the  very  point  upon  which  we 
are  now  speaking,  the  Supreme  Court  of  the 
United  States  unanimously  decided  that  this 
power  could  be  rightfully  vested  in  the  Execu- 
tive. It  says: 

"Is  the  President  the  sole  and  exclusive  judge 
whether  the  exigency  has  arisen,  or  is  it  to  be  con- 
sidered as  an  open  question,  upon  which  every  offi- 
cer to  whom  the  ordersof  the  President  are  addressed 
may  decide  for  himself,  and  equally  open  to  be  con- 
tested by  every  militiaman  who  shall  refuse  to  obey 
the  orders  of  the  President?  We  are  all  of  opin- 
ion that  the  authority  to  decide  whether  the  exigency 
has  arisen  belongs’ exclusively  to  the  President,  and 
that  his  decision  isconclusive  upon  aU  othe  persons. 
We  think  that  this  construction  necessarily  results 
from  the  nature  of  the  power  itself." 

And  again,  which  is  perhaps  a better  author- 
ity with  my  learned  friends  on  the  other  side, 
here  is  the  opinion  of  a Democratic  Attorney 
General,  given  to  a Democratic  President,  on 
the  sutyect  of  lending  military  assistance  to 


16 


the  Governor  of  California  on  a certain  occa- 
sion. Mr.  Cashing,  the  Attorney  General, 
informed  the  President  that — 

“It  is  the  function  of  the  President  of  the  United 
States,  indubitably,  to  decide,  in  his  discretion, 
what,  facts  existing  constitute  the  case  of  insurrec- 
tion contemplated  by  the  statutes  and  by  the  Con- 
stitution.” 

And  he  cites,  to  support  that,  the  decision  I 
have  just  read,  and  the  case  of  Luther  vs. 
Borden,  the  Rhode  Island  rebellion  case, 
which  also  affirms  it.  So  that  we  have  not 
only  the  practice  of  the  Government  since  its 
foundation,  not  only  the  action  of  its  Execu- 
tive Departments,  but  two  solemn  decisions  of 
that  tribunal  of  final  resort  which  is  to  determ- 
ine such  questions,  that  the  power  to  determ- 
ine what  facts  constitute  an  insurrection  when 
powers  are  vested  in  the  President,  what 
facts  constitute  a rebellion,  what  exigency 
shall  justify  him  in  suspending  the  laws  as  to 
embargoes,  in  the  nature  of  things  belongs 
to  or  certainly  may  by  law  be  vested  in  that 
department  which  gentlemen  now  seem  to  have 
forgotten,  but  which  the  Constitution  has 
created  for  the  protection  and  exercise  of  the 
power  of  the  people — the  President  of  the 
United  States. 

Therefore,  there  is  no  good  ground  to  main- 
tain that-  this  provision  of  this  bill  which  au- 
thorizes the  President  of  the  United  States  to 
suspend  the  writ  of  habeas  corpus  in  the  case 
of  a rebellion  is  open  to  any  question  as  to 
its  constitutionality  ; and  let  me  suggest  to  my 
honorable  friend  from  Ohio  that  the  case  of 
Bollman  and  Swartwout,  which  he  referred  to 
yesterday,  does  not  decide  or  intimate  that  the 
President  may  not  be  clothed  with  that  power. 
It  only  declares  that  it  belongs  to  Congress  to 
withdraw  from  the  Supreme  Court  of  the  Uni- 
ted States,  if  it  chooses,  the  jurisdiction  to  hear 
a writ  of  habeas  corpus , as  in  some  cases  has 
been  done  since  that  time.  And  Judge  Story, 
whose  commentaries  the  Senator  read  yester- 
day, instead  of  stating  that  Congress  has  not 
the  power  to  delegate  that  authority  to  the 
President,  speaks  of  Congress  “authorizing” 
the  suspension  of  the  writ  of  habeas  corpus , 
using  that  term. 

Then  Judge  Story  suggests  in  a query,  it  is 
true,  afterward,  that  it  seems,  as  that  may  be 
a legislative  power,  Congress  alone  would  be 
authorized  to  exercise  it;  that  is,  as  I under- 
stand him,  to  exercise  the  power  of  providing 
for  the  contingency  in  which  and  upon  which 
the  President  should  exercise  the  function  of 
suspending  the  writ;  because  it  had  been  con- 
tended in  Judge  Story’s  time,  and  it  is  yet  by 
eminent  lawyers,  that  this  is  a presidential 
power  altogether,  and  that  without  any  act 
of  Congress  the  President  under  the  Consti- 
tution is  authorized,  of  his  own  mere  will,  sub- 
ject to  his  high  responsibility  to  the  people, 
to  suspend  the  writ  himself  at  any  time  when 
he  thinks  the  public  safety  and  a case  of  inva- 
sion or  revolution  require  it.  I do  not  myself 
agree  to  this  last  view.  Under  the  English 
constitution,  from  which  we  derived  this  pro- 


cess, in  aid  of  liberty,  the  suspension  of  the  writ 
was,  when  the  occasion  demanded  it,  always 
authorized  by  Parliament,  and  exercised  by  the 
Crown  under  that  authority.  And  in  the  same 
manner,  I have  no  doubt,  it  was  designed  to 
be  exercised  under  our  Constitution. 

So  that,  when  you  come  to  put  it  in  the  form 
of  law,  there  is  no  ground  whatever  upon  which 
it  can  be  questioned.  The  principles  of  the  Gov- 
ernment are  against  the  honorable  Senators’ 
position  ; tne  decisions  of  the  courts  are  against 
it ; the  nature  of  the  power  is  against  it ; the 
philosophy  of  firovernment  is  against  it;  for 
the  reason  that  it  is  much  safer  to  invest  the 
exercise  of  this  power  in  the  President  of  the 
United  States  in  times  of  great  public  excite- 
ment, when  the  two  Houses  of  Congress  are 
divided  into  heated  parties,  and'when,  there- 
fore, an  inflamed  majority  might  attempt  to 
suspend  it  when  the  President  v/ould  not  do 
it  at  all,  than  it  is  to  leave  it  to  the  partisan 
passion  of  factions  in  Congress. 

Mr.  BAYARD.  I will  ask  the  honorable 
Senator  from  Vermont  whether  he  conceives 
that  in  the  case  of  the  exercise  of  discretion 
a party  holding  a delegated  power  has  a right 
to  commit  it  over  to  a third  party  ? He  has 
stated  the  case  of  contingency.  Let  me  put 
him  another.  Does  he  conceive  that  it  would 
be  competent  for  the  Congress  of  the  United 
States  to  authorize  the  Secretary  of  the  Treas- 
ury to  increase  the  duties  on  imports  fifty  per  - 
cent,  at  such  time  as  he  should  consider 
the  condition  of  the  public  Treasury  would 
admit  it? 

Mr.  EDMUNDS.  I do  not  know  what  . 
answer  I should  give  to  that  question  just  now. 

I will  take  it  into  consideration. 

Mr.  BAYARD.  The  answer  of  the  honor- 
able Senator  is  about  equal  to  the  usual  cour- 
tesy he  has  shown  in  debate.  When  I was  dis- 
cussing this  bill  the  day  before  yesterday  he 
did  not  hesitate  to  interrupt’ me  by  questions, 
all  of  which  I endeavored  to  answer  as  best  I 
could.  He  interjected  into  *»y  speech  at  that  ‘ 
time  a very  long  remark  of  his  own  without  any 
reference  to  the  fact  of  whether  it  was  desirable 
to  me  to  have  it  there  or  not.  Now  I ask  him  f 
aquestion  simply  proposing  to  test  the  accuracy 
of  the  principle  he  is  presenting  to  the  Senate 
and  to  the  country,  whether*  where  Congress 
has  discretion  it  can  delegate  it  to  the  President 
or  to  any  other  officer  of  the  Government? 

Mr.  EDMUNDS.  1 ask  my  friend’s  pardon, 
if  he  thought  my  reply  was  discourteous.  As 
an  humble  member  of  the  bar,  and  not  having 
thought  of  that  precise  question,  I was  really  in 
a painful  state  of  ignorance  as  to  exactly  what 
the  law  was  on  that  point,  and  candor  com- 
pelled me  to  say  that  I must  take  it.  into  con- 
sideration. I hope  my  friend  did  not  suppose 
I objected  to  his  asking  the  question,  or  to 
making  any  observation  upon  it  he  liked.  But 
he  certainly  is  asking  a little  too  much  of  my 
courtesy  to  insist  on  my  answering  a question 
that  I do  not  know  how  to  answer.  He  really 
ought  not  to  do  that. 


17 


Mr.  BAYARD.  We  are  all  cognizant  of 
the  honorable  Senator’s  capacity  both  to  ask 
and  answer  questions.  He  is  here  discussing 
a question  of  this  gravity,  nothing  less  than 
whether  the  Congress  of  the  United  States  has 
the  power  to  delegate  its  high  judgment  and 
discretion,  reposed  in  it  for  the  benefit  of  the 
people  of  this  country,  to  be  exercised  by  a 
third  party,  whether  an  officer  of  this  Gov- 
ernment or  not.  It  seems  to  me  that  there  is 
a great  principle  attending  that.  The  exer- 
cise of  the  discretion  of  suspending  the  writ 
of  habeas  corpus , of  ascertaining  whether  the 
public  safety  requires  it,  is  something  in  my 
opinion'that  cannot  be  delegated  by  the  Con- 
gress of  the  United  States  to  any  one.  They 
only  can  suspend  that  writ,  the  great  safeguard 
of  the  people’s  liberty,  when  Ihe  public  safety 
shall  require  it,  and  then,  superadded  to  that, 
the  two  occasions  of  rebellion  and  invasion. 
Now  I ask,  this  being  a matter  of  discretion, 
when  the  public  safety  may  require  the  raising 
of  revenues  to  a greater  grade  than  they  were 
before,  whether  the  Senator  would  consider 
it  competent  for  Congress  to  delegate  its  dis- 
cretion to  the  Secretary  of  the  Treasury  to  in- 
crease the  duties  upon  imports  should  the  pub- 
lic safety  require  it,  and  I will  superadd,  the 
existence  of  rebellion  and  invasion  at  that 
time  ? 

Mr.  EDMUNDS.  Without  going  to  the 
Secretary  of  the  Treasury  to  find  out  what  the 
law  is,  it  is  sufficient  to  say,  what  I have  already 
said,  I think,  and  that  is  that  the  authority 
which  the  Legislature  may  vest  in  the  Presi- 
dent of  the  United  States  to  suspend  the  writ 
of  habeas  corpus  is  not  the  delegation  of  a 
legislative  discretion  at  all,  any  more  than  it 
is  the  delegation  of  a legislative  discretion  to 
authorize  him  to  expel  intruders  from  the  pub- 
lic lands  by  force,  as  has  been  done,  whenever 
he  shall  think  the  interest  of  the  United  States 
requires  it.  I could  give  my  friend  a hundred 
instances  where  what  he  calls  a legislative  dis- 
cretion, but  what  I call  an  executive  discretion 
to  act  upon  a contingency,  and  in  respect  to 
which  the  person  in  whom  the  discretion  is 
confided  must  be  the  judge  from  the  nature  of 
things  as  to  whether  the  contingency  has  hap- 
pened, has  been  delegated,  and  always  must 
be  ; and  this  belongs  to  that  class  of  cases. 

It  is  a singular  commentary  upon  this  hos- 
tility to  having  the  writ  of  habeas  corpus  actu- 
ally suspended  under  authority  of  law,  except 
in  the  heat  of  a party  debate  in  and  by  the  two 
Houses  of  Congress,  that  the  only  time,  until 
the  rebellion,  when  the  writ  of  habeas  corpus 
was  attempted  to  be  suspended,  it  was  at- 
tempted in  the  very  way  that  my  honorable 
friend  wishes  to  have  it,  by  the  party  heat  of 
men  in  the  Senate  introducing  a bill  to  sus- 
pend the  writ  of  habeas  corpus  of  their  own 
will,  withdrawing  from  the  President  any  right 
or  discretion  about  it  at  all,  and  they  sent 
it  over  to  the  other  House  secretly,  with  a 
confidential  message  that  they  hoped  they 
would  put  it  through  ; and  the  House  spurned 


it  with  indignation  and  contempt.  That  shows 
that  safety  and  good  policy  require  that  this 
power  should  be  vested,  and  in  perfect  con- 
formity to  the  course  of  history  and  to  the  con- 
stitutional declaration  of  analogous  principles 
where  the  law  shows  it  has  been  vested. 

Mr.  THURMAN.  Will  the  Senator  allow 
me  to  ask  him  a question  right  there,  to  see  it 
I understand  him  ? 

Mr.  EDMUNDS.  Certainly. 

Mr.  THURMAN.  I understand  him  to 
argue  that  the  power  can  be  more  safely 
lodged  in  the  President  than  in  Congress, 
because  of  party  heats  that  might  exist  in 
Congress  at  the  time  the  act  should  be  passed 
to  suspend  it.  Could  any  act  passed  by  Con- 
gress to  suspend  it  have  any  effect  until  it  was 
approved  by  the  President? 

Mr.  EDMUNDS.  That  would  depend  a 
little,  as  in  Mr.  Johnson’s  time,  upon  how 
strong  the  majority  in  Congress  happened  to 
be.  I was  aware,  without  my  honorable  friend 
reminding  me  of  the  fact — I had  learned  in 
the  course  of  my  studies — that  an  act  of  Con- 
gress usually  required  the  approval  of  the 
President,  at  least  to  be  submitted  to  him, 
and  then  to  be  passed,  if  he  did  not  approve 
it,  by  the  constitutional  majority.  But  my 
friend  cannot  be  ignorant  of  the  fact,  and,  in 
candor,  I think  he  will  confess  it,  that  even  in 
the  case  of  a party  majority  it  would  be  one 
thing  to  pass  an  act,  with  the  approval  of  the 
President,  absolutely  suspending  the  writ  of 
habeas  corpus , where,  if  he  vetoed  it,  he  would 
be  obliged  to  fly  in  the  face  of  his  party 
friends,  as  some  Presidents  in  old  times  have 
been  weak  enough  to  be  afraid  of  their  party — 
I am  glad  we  have  not  had  any  lately — and 
quite  another  to  refrairf  from  exercising  a 
granted  power  and  to  stand  by  the  right, 
whether  particular  people  in  the  party  or  out 
of  it  should  like  it  or  not.  The  difference 
would  be  very  great  between  a case  of  the 
first  kind  and  the  passage  of  a law  which 
should  confide  to  him,  in  the  case  of  a great 
public  emergency,  the  discretion  and  the  re- 
sponsibility of  doing  a specific  act.  We  know 
in  legislative  experience  that  we  confer  by 
authority  upon  the  President,  the  executive 
branch  of  the  Government,  many  powers  every 
year  that  neither  he  nor  we  would  enact  as  a 
positive  thing  to  be  done.  Government  can- 
not be  carried  on  in  that  way. 

In  the  instance  I have  referred  to,  the  only 
one  in  our  history  of  an  attempt  to  suspend 
the  habeas  corpus  by  a positive  act  of  Congress, 
suspending  it  by  force  of  law  instead  of  sus- 
pending it  upon  a state  of  facts  that  was  to 
arise,  in  the  judgment  of  the  executive  depart- 
ment of  the  Governtnent,  which  is  what  this 
bill  does,  it  ignominiously  failed,  as  it  ought  to 
do.  It  was  passed  in  the  Burr  troubles,  in  1807, 
by  one  party  of  the  country  which  had  control 
of  the  Senate,  in  the  heat  of  excitement,  and 
it  was  rejected  by  the  sanje  party,  or  rather 
another  one,  in  the  other  House^  either  from 
the  sound  reason  that  it  was  the  fruit  of  undue 


18 


excitement,  or  else  from  a similar  passion  upon 
the  other  side. 

Mr.  BAYARD.  I only  wish  the  honorable 
Senator  would  give  us  a chance  to  have  the 
same  check  applied  to  the  present  suspension ; 
then  the  proposition,  if  made  by  the  Senate, 
might  meet  with  equal  indignation  in  the  House. 
That  is  one  of  the  checks  on  power  which  our 
Constitution  intended  to  give. 

Mr.  EDMUNDS.  Perhaps  it  would  satisfy 
my  friend  better  to  have  it  submitted  to  our 
friends  in  the  minority  here. 

Mr.  BAYARD  and  Mr.  THURMAN.  It 
would  be  in  safer  hands. 

Mr.  EDMUNDS.  No  process  that  would 
let  one  of  the  members  of  those  bands  down 
there  out  of  jail  would  be  omitted,  I have  no 
doubt. 

Now,  Mr.  President,  I have  finished  what  I 
have  to  say  about  the  validity  of  this  bill,  and 
I come  to  the  objection  that  my  honorable 
friend  from  Illinois  [Mr.  Trumbull]  and  my 
friend  from  Missouri  [Mr.  Schurz]  have,  that 
we  are  undertaking  to  create  a case  of  con- 
structive rebellion,  and  that  we  are  going  be- 
yond the  line  of  safe  precedent,  the  line  of 
constitutional  consideration,  in  undertaking  to 
say  that  such  and  such  facts  shall  amount  to 
a rebellion.  I do  not  think  it  necessary  to  say 
that  myself.  I should  be  quite  as  well  satis- 
fied, and  better  satisfied,  with  the  bill  as  an 
efficient  and  powerful  measure  in  a great 
emergency  if  it  simply  declared  that  if,  in  the 
course  of  these  disturbances;  a case  of  rebel- 
lion should  occur,  then  and  in  that  case  the 
President,  if  thepublic  safety  in  his  judgment 
should  require  it,  might  suspend  the  writ  of 
habeas  corpus  for  a limited  time.  The  fact  is, 
this  section  has  accumulated  much  more  in  the 
statement  of  an  existing  condition  of  things 
than  is  necessary  to  make  a case  of  rebellion. 

My  friends  have  spoken  as  if  there  must  be  a 
great  civil  war,  that  it  must  cover  a great  tract 
of  country,  a whole  State,  or  a whole  section 
of  States,  in  order  to  make  a case  of  rebellion. 
That  is  an  entire  mistake  both  in  reason  and 
on  authority.  It  has  been  decided  by  the  courts 
over  and  over  again  that  what  amounts  to  levy- 
ing war  against  the  United  States  does  not 
depend  on  the  number  of  people  engaged  in 
it;  they  may  be  one  hundred  thousand,  or  ten 
thousand,  or  one  hundred,  or  two  hundred,  as 
my  friend  from  California  says  the  number  is 
in  Alamance  county,  of  the  people  for  whom 
he  has  put  in  so  satisfactory  a plea  for  sympa- 
thy and  consideration,  or  it  may  be  two ; that 
the  levying  of  war  against  the  United  States,  or 
the  raising  of  an  insurrection  or  a rebellion, 
which  is  another  name  for  the  same  thing — an 
aggravated  insurrection  is  all  there  is  to  it — 
does  not  in  any  degree  depend  upon  the  num- 
ber of  people  who  may  be  concerned  in  it,  nor 
upon  the  extent  of  territory  over  which  it  may 
have  sway. 

Why,  sir,  in  the  excellent  times  of  the  Dem- 
ocratic party,  a few  years  ago,  they  indicted 
a man  for  treason  and  brought  him  to  trial 


before  Judge  Grier,  up  in  Pennsylvania,  for 
being  present  levying  war  against  the  United 
States,  where  a band — I will  not  say  a band ; 
I have  got  used  to  that  word  by  hearing  so 
much  said  about  the  Ku  Klux — where  a body 
of  negroes,  not  more  thau  one  hundred,  came 
in  hot  haste,  as  neighbors,  to  the  house  of  an- 
other negro,  where  an  officer  was  endeavoring 
to  carry  him  off  into  slavery,  and  resisted  with 
clubs  and  stones  and  branches  of  trees  (and  I 
do  not  know  but  some  of  them  had  guns — I 
presume  they  had)  the  marshal  of  the  United 
States  or  the  deputy  marshal,  in  endeavoring 
to  seize  and  carry  off  that  man;  and  Judge 
Grier  told  the  jury,  reciting  from  all  the  cases 
that  had  been  determined  on  these  subjects, 
just  what  I have  said,  (and  if  anybody  doubts 
it,  here  is  the  bo®k. ) I do  not  want  to  trespass 
on  the  patience  of  the  Senate  by  reading  it, 
that  the  number  of  people  who  were  engaged 
in  it  had  nothing  to  do  with  it ; that  the  ex- 
tent of  territory  over  which  they  might  carry 
on  the  operation  had  nothing  to  do  with  it ; 
that  treason,  the  levying  of  war  against  the 
United  States,  could  exist  in  either  case,  which, 
of  course,  is  greater  than  a mere  insurrection 
or  a mere  rebellion  ; and  that  was  the  ground 
upon  which  the  jury  found  for  the  poor  specta- 
tor who  happened  to  be  a white  man  and  who 
heard  the  tumult  and  came  and  stood  by  ; but 
in  order  to  make  an  example  for  the  Pennsyl- 
vanians, they  thought  it  better  to  indict  a white 
man  who  was  present,  rather  than  to  indict  a 
negro  who  was  busy  in  the  performance.  The 
ju^ige  told  the  jury,  as  I have  said,  that  the 
only  escape  for  the  man  would  be  upon  the 
fact,  as  it  appeared,  that  he  had  not  contem- 
plated, as  the  purpose  of  his  performance,  the 
overthrow  of  the  Government  of  the  United 
States  or  the  undertaking  to  overthrow  its 
Jaws  ; that  his  was  the  mere  private  object,  if 
he  was  connected  with  it  at  all,  of  rescuing  that 
particular  man  from  what  he  regarded  as  an 
unlawful  arrest.  He  might  have  been  guilty 
of  aiding  an  insurrection  or  rebellion,  but  the 
treason  for  which  he  was  prosecuted  was  not 
necessarily  the  same  thing. 

Now,  therefore,  if  the  purpose  of  this  con- 
spiracy is  that  which  this  statute  imputes  to  it — 
and  the  statute  does  not  declare  that  there  is 
any  such  conspiracy — we  have  not  tried  the 
case  in  advance,  as  my  honorable  friend  from 
California  supposes,  in  putting  in  his  plea  for 
the  criminals  ; we  are  trying  no  case ; we  are 
legislating  as  we  always  do  in  criminal  mat- 
ters, for  future  and  not  for  past  crimes — it  will 
be,  in  the  contingency  named,  a plain  case  of 
rebellion. 

Mr.  CASSERLY.  I put  it  to  my  friend 
whether  he  thinks  it  is  fair  to  say  twice,  as  he 
has  within  ten  minutes,  that  I have  put  in  a 
plea  for  the  Ku  Klux.  If  the  Senator  listened 
to  me,  he  knows  that  is  not  a fair  statement 
of  what  I said. 

Mr.  EDMUNDS.  I did  listen  to  the  honor- 
able Senator,  and  I say  upon  my  honor  and 
my  conscience  that  I think  it  is  perfectly  fair. 


19 


Mr.  CASSERLY.  Then  the  fault  must  be 
either  with  my  mode  of  expression,  which  I 
do  not  think  is  the  case,  or  with  the  gentle- 
man’s understanding. 

Mr.  EDMUNDS.  That  maybe.  I do  not 
pretend  to  have  a very  large  understanding ; 
and  as  to  the  extent  of  the  Senator’s  power  of 
expression,  I will  leave  him  to  judge.  Mr. 
President,  if  I am  any  judge  of  the  tendency 
and  effect  of  a speech,  whatever  may  be  the 
sounding  of  its  phrases,  however  much  it  may 
be  tinctured  with  generalizations  of  horror  at 
crimes,  which  I have  no  doub^my  honorable 
friend  feels,  I think  any  impartial  hearer  of 
what  he  has  said,  who  belongs  to  no  party — 
I do  not  know  but  that  I could  leave  it  to  my 
friend  from  Missouri,  [Mr.  Schurz,]  who  as- 
sumed rather  a neutral  ground  here  ; I would 
leave  it  to  anybody  who  is  a fair  judge,  and 
who  has  no  prejudice — would  say  that  the 
whole  tenor  and  effect  of  the  Senator’s  speech 
was  a plea  for  the  Ku  Klux,  for  the  body  that 
compose  it,  not  a plea  for  their  acts.  Do  not 
let  the  Senator  misunderstand  me,  because  I 
should  be  very  sorry  to  feel  that  I had  done 
him  an  injustice  when  he  has  no  full  right  of 
reply ; but  he  must  excuse  me  for  putting  my 
own  construction  upon  the  tendency,  not  upon 
the  object — my  friend’s  objects  are,  as  I must 
suppose  he  thinks,  always  good— upon  the  ten- 
dency of  the  remarks  that  he  has  addressed  to 
the  Senate. 

Every  member  of  that  organization  (and  I 
have  no  doubt  that  thousands  of  them  will  read 
it)  will  say  to  his  brother  as  he  meets  Him  in  the 
woods  at  midnight,  or  lies  in  ambush  around 
the  house  of  some  citizen  to  slay  him  unawares, 
because  only  that  he  is,  like  myself,  a Ver- 
monter and  a Republican,  as  happened  within 
ten  days  in  Florida:  “ We  have  some  people 
among  our  friends  at  the  North  who  sympa- 
thize with  our  wrongs  and  sufferings.  To  be 
sure  they  do  not  wish  us  to  commit  these 
crimes,  but  they  feel  that  we  are  wronged. 
Negro  suffrage  has  been  imposed  upon  us. 
We  have  been  taxed  to  build  school-houses. 
We  have  seen  the  freedom  of  worship.  We 
have  been  compelled  to  build  roads.  We  have 
seen  this  despised  and  degraded  race  occupy- 
ing situations  of  honor  and  responsibility.  Our 
friends  sympathize  with  us.  They  wish  we 
•could  right  these  wrongs  and  grievances  by  the 
force  of  law ; they  wish  that  we  could  wait 
until  we  could  get  into  a majority  and  turn 
these  fellows  out  by  fair  voting.  But  they  do 
not  know  at  Washington  and  away  up  North 
that  we  are  in  a minority  on  fair  counting. 
They  do  not  know  that  we  think  the  true  way 
to  get  rid  of  this  question  forever  is  not  to  wait 
until  the  Constitution  of  the  United  States  is 
changed  under  the  auspices  of  the  party  of  our 
friends  there  when  they  get  the  chance,  or 
repudiated,  as  their  greatest  leader  says  it 
ought  to  be;  but  our  best  hope  now  is  to  do 
what  we  are  doing;  and  while  they  do  not 
sympathize  with  the  method  they  sympathize 
with  the  inducement  and  they  sympathize  with 


the  end.”  That  is  the  position  in  which  my 
friend  will  be  regarded,  I have  no  doubt,  in 
the  States  where  these  organizations  have 
sway. 

Mr.  CASSERLY.  If  my  friend  will  allow 
me,  I endeavored  throughout  to  distinguish 
between  the  mass  of  the  people  and  the  crim- 
inals and  guilty  men  who,  as  I understand  it, 
now  compose  these  klans.  I do  not  think  that 
one  of  those  men,  or  two  or  three  or  more  of 
them  meeting  in  the  woods  at  midnight  or  at 
any  other  time,  if  they  should  ever  read  my  ' 
speech,  will  understand  it  at  all  as  the  Senator 
from  Vermont  understands  it,  unless  indeed 
he  should  take  the  trouble  to  send  them  his 
speech  as  a key  to  mine.  [Laughter.] 

Mr.  EDMUNDS.  As  I am  not  in  corre- 
spondence with  any  of  them  or  any  of  their 
friends,  I would  have  to  borrow  my  friend’s 
frank  to  send  them  down  with.  [Laughter.] 

Mr.  THURMAN.  I wish  to  ask  theSeuator 
a question,  with  his  permission. 

Mr.  EDMUNDS.  Certainly. 

Mr.  THURMAN.  Does  the  Senator  from 
Vermont  really  think,  when  a Senator  rises  in 
his  place  and  states  what  he  believes  to  be 
among  the  causes  of  these  disorders  in  the 
South,  that  that  is  an  apology  for  them  ; that 
that  is  any  proof  of  sympathy  with  them? 
When  a Senator  gives  an  account  of  the  con- 
dition of  the  country  there,  and  of  what  would 
be  likely  to  excite  men’s  opposition,  and  there- 
by enables  us  to  judge  what  is  the  cause,  is 
that  sympathy  with  them  ? Is  that  an  apology 
for  them  ? If  so,  I hope  the  Senator  will  read 
the  speech  delivered  by  my  friend,  the  Senator 
from  South  Carolina,  [Mr.  Sawyer,]  and  he 
will  there  find  a more  thorough  investigation 
of  the  causes  of  these  difficulties  than  has  been 
made  by  any  Democratic  Senator  on  this  floor. 

Mr.  EDMUNDS.  I suppose  my  friend 
merely  wished  to  make  a speech  under  the 
cover  of  asking  me  a question,  and  I have  no 
objection  to  that ; but  if  he  meant  it  for  a 
question  I will  answer  it.  I repeat  that  I 
really  think,  and  I repeat  that  nine  tenths  of 
the  people  who  hear  me  really  think  that  the 
scope  of  the  speech#of  the  Senator  from  Cali- 
fornia, take  it  from  beginning  to  end,  weigh 
it  in  gross,  weigh  it  in  detail,  with  the  trim- 
mings off,  as  they  say  in  New  England,  is  a 
speech  which  shows  sympathy,  as  I stated 
before,  with  the  causes  upon  which  these  men 
pretend  to  act  as  causes  of  grievance  which 
he  feels  as  they  do,  and  that  it  shows  a sym- 
pathy with  the  purpose  that  they  have  in  view 
of  getting  rid  of  negro  equality,  getting  rid  of 
the  northern  immigration  of  men  who  do  not 
bow  their  knees  to  them,  and  think  as  they 
think,  talk  as  they  talk,  and  vote  as  they  vote. 

I am  quite  willing  to  take  the  responsibility 
of  stating  that,  not  as  an  apology,  I beg  my 
honorable  friend  to  understand,  but  as  a justi- 
fication of  my  opinion.  My  friend  from  Ohio 
has  the  same  right  to  his  opinion  that  I have 
to  mine.  He  may  think  that  the  tendency  of 
the  speech  of  my  friend  from  California — and  I 


20 


only  take  that  as  a type  and  one  of  the  best  of 
the  kind — he  may  think  that  the  speech  of  my 
friend  from  California  and  the  speeches  of  his 
associates  are  not  in  sympathy  with  the  causes 
upon  which  these  organizations  pretend  to  act, 
or  with  the  designs  which  they  have  in  view.  He 
may  imagine  that  they  have  all  been  devoting 
themselves  to  a condemnation,  to  a discourage- 
ment of  these  things,  to  an  effort  to  restore  law 
and  order  in  those  States,  to  an  effort  to  have 
justice  administered  and  to  have  peace  pre- 
vail, to  an  effort  to  protect  citizens  of  Ver- 
mont, or  Ohio,  or  California,  who  may  have 
a political  faith  w^ich  they  were  born  to  and 
which  they  believe  in,  and  who  may  emigrate 
to  some  one  of  those  southern  States  and  buy 
land  and  settle  down  upon  it  in  the  right  which 
the  Constitution  says  they  have,  but  which,  as 
a fact,  they  have  not  at  this  time;  but  they 
shall  have  it  if  the  power  of  the  Government 
is  strong  enough  to  give  it  to  them,  and  I think 
it  is,  if  I can  have  my  way,  that  they  may  have 
the  right  to  settle  there  and  live  in  peace ; that 
is  all. 

Now,  sir,  this  is  one  way  or  the  other.  Either 
our  friends  over  the  way  wish  to  repress  this 
condition  of  things,  if  they  have  the  power, 
or  they  do  not ; and  it  seems  to  be  a matter 
of  dispute  between  my  friend  from  Ohio  and 
myself  as  to  exactly  what  the  meaning  of 
their  speeches  is.  I am  sorry  that  they  have 
not  been  a little  more  frank.  If  there  is  any 
legislation  to  which  Congress  can  resort  con- 
stitutionally to  repress  these  evils,  if  they  do 
exist,  why  do  not  the  honorable  Senators  pro- 
pose it?  The  trouble  is  that  the  legislation 
that  they  would  propose  would  be  what  their 
leaders  have  proposed  before,  to  go  backward, 
to  repeal  reconstruction  as  they  call  it,  to  re- 
peal these  amendments,  to  reduce  the  people 
of  the  southern  States  to  the  same  condition 
that  they  were  before  the  war.  That  is  their 
way  of  redress.  But  if  you  ask  them  to  aid 
us,  if  we  have  the  constitutional  power,  to 
protect  the  people  of  these  States  in  imposing 
taxes  for  the  increase  of  education  and  the 
diffusion  of  knowledge,  and  in  the  peaceable  en- 
joyment of  their  homes,  v^Jien  the  people  who 
own  the  soil  and  the  property  in  order  to  prevent 
that  taxation  and  to  drive  out  the  people  who 
wish  to  have  the  money  expended  for  those 
purposes,  conspire  and  combine  to  burn  down 
their  school-houses  and  their  homes,  to  scourge 
and  whip  them,  to  rob,  murder,  and  pillage 
them,  and  punish  them  and  drive  them  away, 
our  friends  on  the  other  side  find  no  power 
under  the  Constitution,  or  any  occasion,  in 
fact,  to  take  any  step  of  that  sort. 

The  only  function  which  is  left  to  them,  if 
they  are  to  be  responsible  for  action,  is  either 
no  action  at  all,  leaving  the  thing  as  it  stands 
now,  either  from  inability  or  want  of  power  to 
cope  with  it,  and  thus  disgracing  ourselves  in 
the  face  of  the  world  and  in  the  face  of  the 
Ruler  of  the  world,  or  we  must  take  the  step 
proposed  by  the  honorable  Senator  from  Mis- 
souri, [Mr.  Blair,]  one  of  the  justly  prized 


leaders  of  the  party,  high  in  the  line  of  promo- 
tion, and  entitled  to  its  first  honors;  and  that 

is,  to  drive  out  the  “ carpet-baggers,”  to  drive 

out  the  “scalawags,”  to  restore  the  true 
order  of  things,  take  away  the  ballot  from  the 
negro 

Mr.  BLAIR.  I ask  the  Senator  where  any 
such  expression  has  ever  occurred  in  anything 
that  I have  said  ? The  Senator  cannot  point 
to  a line  or  a word  of  the  kind  that  he  is  now 
attributing  to  me,  and  I think  the  Senator 
should  be  cautious  in  attributing  language  to 
others.  He  ha%  no  warrant  for  imputing  any 
such  language  to  me. 

Mr.  EDMUNDS.  If  I have  attributed  any- 
thing to  the  Senator  that  he  has  not  said  I 
am  very  glad  to  be  corrected.  He  wants  the 
language.  I have  it  not  before  me.  I did  not 
profess,  and  I do  not  profess  in  anything  more 
that  I shall  say,  which  shall  not  be  much,  I 
assure  the  Senate,  to  quote  any  language  of 
his  verbatim  et  literatim . I only  repeat  that, 
if  I read  the  honorable  Senator’s  celebrated 
letter  aright,  in  substance  and  in  effect  it  was 
precisely  as  I have  said.  If  I read  the  honor- 
able Senator’s  speech  the  other  day  aright,  and 
I think  I did,  it  was  in  substance  and  effect 
what  1 have  stated  now,  an  attack  upon  what 
he  was  pleased  to  style  the  “ carpet  baggers  ” 
as  being  responsible  for  this  order  of  things. 

Mr.  BLAIR.  I will  say  that  the  Senator,  . 
in  giving  the  substance  and  effect  of  my  letter 
and  speeches,  is  about  as  unfortunate  as  he  is 
in  attributing  to  this  side  of  the  Chamber  any 
desire  to  defend  the  outrages  of  the  Ku  Klux,  . 
or  any  other  outrages. 

Mr.  EDMUNDS.  Certainly;  I thought  I 
had  guarded  myself  against  misunderstanding 
about  that  before.  I have  stated  to  the  Sen- 
ator from  California  and  to  the  Senator  from 
Ohio  that  of  course  every  one  of  my  honor- 
able friends  is  equally  opposed  to  outrages  of 
every  kind  and  to  every  measure  to  repress 
them;  and  that,  I suppose,  is  why  they  are 
opposed  to  the  suspension  of  the  writ  of  habeas 
corpus , which  might  result  in  depriving  one  of 
a class  of  people  who  might  possibly  be  caughtf, 
masked  and  disguised,  in  burning  a house  down 
from  being  locked  up  and  not  let  out  by  a 
friendly  judge  on  the  spot.  They  are  opposed 
to  outrage ; but  1 repeat  that  they  and  their 
friends  throughout  the  country  (but  they  are 
not  a very  large  number)  are  in  sympathy,  and. 
it  is  useless  to  deny  it,  and  nobody  does  deny 

it,  with  what  these  bands  consider  to  be  their 
cause  of  grievance.  They  are  in  sympathy 
with  the  hatred  and  opposition  to  the  negroes 
voting.  Am  I misrepresenting  the  honorable 
Senator  now,  or  any  of  his  colleagues? 

Mr.  CASSERLY.  Does  the  Senator  refer 
to  me? 

Mr.  EDMUNDS.  I was  referring  to  the 
whole  body. 

Mr.  CASSERLY.  If  the  Senator  is  firing 
at  the  flock,  that  is  a very  safe  way  of  firing. 

Mr.  EDMUNDS.  I seem  to  have  hit  one 
bird,  at  any  rate.  [Laughter.] 


21 


Mr.  THURMAN.  The  Senator  in  a closing 
speech,  to  which  nobody  has  an  ^opportunity 
to  reply,  makes  an  assault  on  his  fellow-Sen- 
ators  on  this  side  of  the  Chamber. 

Mr.  EDMUNDS.  I give  my  friends  the 
opportunity  of  interruption  and  explaining 
as  often  as  they  like. 

Mr.  CASSERLY.  Then,  if  the  Senator 
will  permit  me,  I challenge  him  to  put  his 
finger  on  anything  that  I said  in  my  speech 
of  that  sort. 

Mr.  EDMUNDS.  If  it  is  to  receive  a chal- 
lenge for  anything  outside  of  the  Chamber,  I 
am  decidedly  opposed  to  it.  [Laughter.] 

Mr.  CASSERLY.  I trust  1 understand  my 
own  duty  too  well  and  the  Senator’s  prowess 
too  well  to  venture  on  any  experiment  so  haz- 
ardous as  that  would  be.  Now,  I call  on  the 
Senator  to  put  his  finger  on  any  word  of  mine 
which  authorizes  in  the  slightest  degree  his 
accusation  that  I am  in  sympathy  with  the  Ku 
Klux  in  their  hatred  of  negro  suffrage.  What 
did  I say  on  that  subject  that  would  warrant 
such  an  accusation  on  the  part  of  the  Senator? 
No  one  heard  me  utter  such  a word. 

Mr.  EDMUNDS.  I cannot  even  now,  when 
my  friend  has  had  an  opportunity  to  explain, 
exactly  find  out  which  side  of  that  question  he 
was  on. 

Mr.  CASSERLY.  It  is  no  explanation.  I 
demand  to  know  what  word  I said  that  justi- 
fies the  accusation  of  the  Senator. 

Mr.  EDMUNDS.  Inasmuch  as  my  good 
friend’s  speech  is  not  before  me,  and  inasmuch 
as  1 took  no  notes  of  it,  and  inasmuch  as  it 
contained  a good  manj  words,  I must  decline 
to  lay  my  finger  on  the  word.  I repeat  the 
statement,  however,  and  I hope  my  friend  will 
not  think  I mean  to  do  him  injustice.  He  is 
an  adroit  rhetorician.  He  knows  as  well  how 
to  sugar  over  a fact  that  it  would  be  a little 
disagreeable  to  have  stick  out  very  prominently 
as  any  man  with  whom  1 am  acquainted.  He 
is  a master  of  fence  in  rhetoric  ; and  he  must 
have  read  largely,  I take  it, of  the  writings  of  that 
celebrated  man  who  thought  that  the  purpose 
of  language  was  not  always  to  express  ideas, 
but  sometimes  to  conceal  them.  If  he  and  his 
friends  are  in  favor  of  negro  suffrage,  let  them 
declare  it  now.  If  they  are  opposed  to  it  and 
mean  to  overthrow  it,  let  them  say  so  broadly 
in  the  face  of  the  Senate.  If  they  have  opinions 
and  designs  which  they  wish  to  conceal,  let 
them  remain  silent. 

Now,  I say  again  that  if  there  is  any  position 
which  the  Democratic  party  occupies  before 
the  country,  and  has  occupied  for  the  last  ten 
years,  which  is  known  and  understood  of  all 
men,  it  is  that  they  were  opposed  first,  last, 
beginning,  and  end,  through  and  through, 
always,  to  the  extension  of  the  ballot  to  the 
negro  anywhere  and  in  any  State.  Possibly, 
when  I say  “ in  any  State,”  in  some  one  of 
the  northwestern  States,  I may  have  stated  it 
too  largely.  Let  me  tell  my  honorable  friends 
that  if  they  would  manfully  take  the  position 
to-day  and  declare  here  publicly,  aud  in  lan- 


guage that  their  southern  friends  could  under- 
stand, that  they  are  in  favor  of  negro  suffrage 
being  preserved  as  the  Constitution  preserves 
it,  as  a right  which  no  man,  Democrat  or  Re- 
publican, Ku  Klux  or  southern,  should  be 
permitted  to  assault  with  impunity,  the  list 
of  murders  for  the  next  two  months  would  be 
considerably  reduced  in  the  southern  States. 
It  is  probably  true  that  the  list  of  Democratic 
majorities  would  be  considerably  reduced  in 
the  lew  States  where  they  have  them  also. 

Mr.  CASSERLY.  The  Senator  will  allow 
me  to  say  that  he  still  has  failed  to  put  his 
finger  on  any  language  of  mine  that  proves  me 
to  sympathize  with  the  Ku  Klux  in  their  hatred 
of  negroes  or  in  their  hatred  of  negro  suf- 
frage. I f the  Senator  is  not  able  to  make  good 
that  accusation  he  ought  not  to  repeat  it,  for 
the  reason  that  he  must  know  that  unless  it  is 
true,  and  clearly  true,  to  accuse  a member  of 
the  Senate  of  sympathy  with  a gang  of  men 
who  undoubtedly  have  been  guilty  of  murder 
and  other  crimes  under  circumstances  most 
aggravating  is  a thing  that  ought  not  to  be 
suffered  by  the  Senate. 

Mr.  EDMUNDS.  I do  not  know  exactly — - 

Mr.  CASSERLY.  What  I mean  to  say  is, 
that  it  is  a thing  which  is  trespassing  on  the 
rights  of  the  Senator  who  is  attacked. 

Mr.  EDMUNDS.  My  friend  is  mistaken 
if  he  supposes  I have  attacked  him.  I have 
no  attack  to  make  on  the  Senator.  He  has  just 
as  good  a right  to  his  opinion  as  I have  to 
mine.  I am  a Democrat  in  the  true  sense  on 
that  point;  that  is,  a northern  Democrat  in  a 
Republican  State.  The  southern  ones  do 
not  think  so,  I believe.  [Laughter.] 

Mr.  President,  I repeat,  whether  my  friend 
is  satisfied  with  it  or  not,  what  I said  before, 
that  the  whole  tenor  of  the  speech  of  my  hon- 
orable friend  was  precisely  what  I have  stated ; 
and  that  is,  that  it  was  a speech  of  sympathy 
with  the  causes — I used  before  the  word  “in- 
ducements,” and  if  it  will  please  my  friend 
any  better  I will  use  that  word  now — with  the 
inducements  upon  which  these  gangs  of  men 
and  conspiracies,  if  there  are  any  such,  which 
my  friend  seems  now  to  confess  there  are, 
affect  to  found  their  grievances,  which  are  a 
justification  or  an  apology  to  them,  not  to  my 
friend,  for  the  shocking  and  systematic  out- 
rages they  commit.  And  my  friend  has  had 
the  opportunity  three  times  now,  in  pleading 
not  guilty  to  that  arraignment  in  the  form  that 
he  says  1 made  it,  to  tell  us  what  his  opinion 
on  the  subject  of  negro  suffrage  is,  but  he 
has  not  told  us. 

Mr.  POMEROY.  Ask  him  now. 

Mr.  EDMUNDS.  I have  asked  him,  and 
I have  asked  my  friends  on  the  other  side  as 
a body,  one  and  all,  to  get  up  and  declare  here 
if  they  will — aud  I will  give  them  ten  minutes 
of  time  each,  if  the  patience  of  the  Senate  will 
allow  it — whether  they  are  in  favor  as  a body, 
as  a matter  of  justice  and  right,  or  as  a matter 
of  policy,  if  not  of  justice  and  right,  faithfully 
and  honorably  and  fully  to  guaranty  and  to 


• 22 


secure  to  the  negro  in  every  State  and  every- 
where the  free  and  uninterrupted  right  of  the 
ballot. 

Mr.  BLAIR.  I responded  the  other  day  to 
that  question  when  it  was  asked  me  by  the 
Senator  from  Ohio,  [Mr.  Sherman,]  inaspeech 
that  I had  the  honor  to  make.  I do  not  know 
whether  it  attracted  the  attention  of  the  Sen- 
ator from  Vermont  or  not.  I said  what  I be- 
lieved to  be  true,  that  the  people  of  the  South 
were  willing  to  give  a fair  trial  to  negro  suf- 
frage, and  not  to  deny  to  the  negroes  the  right 
given  to  them  by  the  fifteenth  amendment, 
until  it  was  found  that  with  that  suffrage  the 
institutions  6f  the  country  could  not  be  pre- 
served, when  I believed  that  constitutional 
measures  would  be  taken  to  preserve  the  insti- 
tutions of  the  country,  whether  negro  suffrage 
was  destroyed  or  not.  That  is  what  I said. 

Mr.  EDMUNDS.  Yes,  Mr.  President;  I 
think  I can  comprehend  the  answer,  which  is 
not  an  answer  to  the  question  that  I asked,  as 
to  what  the  Democratic  party  was  for;  but  he 
says  he  believes  that  the  people  of  the  South 
are  willing  to  give  the  experiment  of  negro 
suffrage  a fair  trial. 

Mr.  BLAIR.  Yes;  and  I added  that  the 
trial  had  been  had  here  in  the  District  of 
Columbia,  where  Senators  had  acquired  prop- 
erty, where  streets  for  miles  and  miles  had 
been  laid  out  at  the  expense  of  the  city,  upon 
which  there  were  no  houses,  and  they  had 
found  it  very  convenient  to  take  away  negro 
suffrage  and  the  power  to  rob  and  destroy  the 
property  of  the  citizens. 

Mr.  EDMUNDS.  So  much  the  better,  Mr. 
President;  that  is  franker  still.  The  position 
of  my  honorable  friend,  and  I suppose  of  his 
party,  is  that  he  is  willing  that  the  people  of 
the  South  should  give  to  negro  suffrage  a fair 
trial  until  it  shall  be  found,  as  he  says  it  has 
been  now  found 

Mr.  BLAIR.  By  Congress,  by  yourself 
and  others. 

Mr.  EDMUNDS.  To  be  a failure.  The 
interjection  of  the  Senator  is  a total  error.  I 
understand  the  Senator.  If  he  will  possess  his 
soul  in  patience  he  will  see  that  I will  not  do 
him  injustice.  He  and  his  party  are  willing  that 
their  southern  friends  should  allow  the  negro 
to  have  a fair  trial,  under  the  Constitution,  of 
voting  like  other  men,  until  it  shall  be  found, 
as  it  has  been  found,  as  he  wrongly  asserts, 
by  Congress,  that  they  are  not  entitled  to  it, 
and  that  the  institutions  of  the  country  cannot 
be  preserved  by  it;  that  is  to  say,  the  Demo- 
cratic party  was  willing  to  give  to  the  southern 
colored  population  and  the  colored  population 
of  the  other  States  the  right  to  vote  under  the 
thirteenth  amendment  until  last  month,  when 
the  District  government  here  was  changed 
from  a municipal  to  a territorial  one;  that  is 
to  say,  in  his  judgment,  it  has  been  determ- 
ined and  is  certain  already  that  the  institu- 
tions of  the  country  are  not  safe  under  the 
exercise  of  such  a power,  and  that  it  ought  to 
be  reversed  and  gotten  rid  of;  and  he  states 


it  with  the  frankness  that  belongs  to  a gentle- 
man and  a man  of  honor. 

Mr.  BLAIR.  I atn  sorry  to  see  that  the 
gentleman  is  not  so  frank  as  he  is  pleased  to 
compliment  me  with  being.  I said  that  Con- 
gress had  so  found.  The  Senator,  among 
others,  had  found  'it  necessary  to  lay  restric- 
tions on  the  suffrage,  negro  suffrage  among 
the  rest,  in  order  to  preserve  the  property  of 
this  city  from  confiscation. 

Mr.  EDMUNDS.  That  is  an  entire  mistake, 
but  I am  very  glad  to  hear  the  application  of 
the  Senator  for  mitigation  of  sentence.  Per- 
haps it  ought  to  be  considered  a little.  He 
and  his  friends  again  are  in  favor  of  allowing 
the  southern  people  (whom  .he  distinguishes 
from  the  negro  people)  to  give  to  the  negro 
people  the  right  to  vote  until  it  shall  be  fouud 
that  their  institutions  cannot  go  on ; and  he 
says 

Mr.  BLAIR.  I dislike  to  interrupt  the  Sen- 
ator, but  I will  say  that  he  asked  me  what 
were  the  opinions  of  the  Democrats.  I simply 
answered  what  I believed  were  the  opinions 
of  the  southern  people,  and  I told  him  what  I 
believed  their  opinion  was  upon  this  subject. 
That  is  all. 

Mr.  EDMUNDS.  Very  good.  Now,  if  my 
friend  will  give  me  part  of  the  time,  I will  try 
to  state  what  I understand  his  position  to  be. 

Mr.  BLAIR.  Very  well;  I will  not  inter- 
rupt the  gentleman  further.  I thought  he  called 
for  the  interruption. 

Mr.  EDMUNDS.  Oh,  yes;  I wished,  though, 
to  finish  the  sentence  I was  expressing. 

Now,  Mr.  President,  the  position  again  is — 
and  I do  not  wish  the  honorable  Senator,  unless 
he  is  desirous  of  withdrawing  it,  to  put  him- 
self out  of  the  fair  view  of  it — his  position  and 
that  of  his  party  is,  as  I understand  him,  and  if 
I have  understood  his  letters  and  his  speeches 
and  the  speches  of  his  party  friends,  what  he 
has  now  stated  again — the  variation  of  the 
phrase  makes  no  difference — that  he  is  willing, 
that  the  experiment  of  negro  suffrage  shall  be 
tried  with  the  southern  people,  and  by  the 
southern  people,  if  he  pleases  to  have  it  in  that 
way,  until  it  shall  be  found  that  their  institu- 
tions cannot  go  on  safely  with  it 

Mr.  MORTON.  And  they  are  to  be  the 
judges. 

Mr.  EDMUNDS.  Do  I state  my  friend 
fairly? 

Mr.  BLAIR.  Yes,  sir. 

Mr.  EDMUNDS.  Now,  Mr.  President,  how 
are  we  to  find  it?  Has  not  my  friend,  in  a 
speech  that  has  occupied  more  than  one  day 
in  delivery,  endeavored  to  show  that  one  of 
the  great  causes  of  the  present  disorders  in  the 
southern  States  was  this  very  negro  equality; 
the  power  of  the  negroes  to  put  themselves  into 
office ; the  power  of  the  negroes  to  tax  the  com- 
munity to  support  education  and  justice;  the 
power  of  the  negroes,  as  he  expresses  it,  to 
have  a corrupt  Legislature — a power  which  does 
not  belong  to  the  negro  or  the  Republican,  I 
admit.  It  onfy  belongs  to  the  white  men  and 


23 


Democrats  in  the  State  of  New  York,  where 
my  friend’s  party  is  pretty  strong  at  this  pres- 
ent time.  Boss  Tweed  and  Peter  B.  Sweeney, 
with  their  allies,  are  the  only  class  of  people 
in  a great  State,  and  with  white  men,  who  are 
entitled  to  have  corrupt  Legislatures  without 
changing  the  ballot;  but  if  it  happens  that  in 
some  southern  State  the  colored  man,  if  it  be 
him,  has  imitated  the  vices  of  some  of  his 
northern  brothers  in  the  Legislature,  then  it 
is  time  to  break  down  negro  suffrage.  That  is 
the  position  of  the  Senator  and  his  party,  and 
they  are  welcome  to  it,  even  from  their  own 
point  of  view. 

But  who  is  it  my  friend  intends  to  decide 
whether  this  experiment  is  a failure  or  not? 
The  very  men  who  have  complained  from  first 
to  last  that  it  was  an  outrage  upon  them  that  it 
was  resorted  to  ; that  it  must  be  a failure  ; that 
it  ought  to  be  reversed  ; who  appealed  to  my 
honorable  friend  and  his  party  in  the  last  presi- 
dential campaign  to  take  measures  to  reverse 
it;  and  a party  that  intended — I will  not  say 
\>y  arms — but  a party  that  intended  by  some 
means — and  when  that  party  wants  to  do  any- 
thing it  generally  finds  the  constitutional 
means  somewhere — by  all  constitutional  means 
to  reverse  what  the  Republican  .party  had  done, 
as  one  of  the  fruits  of  the  war  ; to  reverse  all 
reconstruction,  and  to  remit  the  southern  peo- 
ple, as  my  friend  calls  them,  to  wit,  the  south- 
ern rebels,  because  the  great  mass  of  white 
society  were  rebels  in  one  way  or  another,  to 
their  rights,  and  those  rights,  as  they  call  them, 
were  rights  that  recognized  no  equality  in  the 
negro,  either  in  a civil  or  a political  sense. 

That  is  the  position ; and  the  trouble  is — my 
friend  says  that  is  the  cause  of  these  Ku  Klux — ■ 
that  the  people  who  compose  the  ruling  classes 
in  the  South,  the  white  men,  the  great  body  of 
intelligence  among  the  white  men  in  the  South, 
are  determined  to  resist  this  great  change  in 
the  form  of  the  government  and  in  their  social 
condition.  They  therefore  sympathize,  as  Sen- 
ators on  this  floor  do,  not  with  the  methods  of 
these  orders  and  organizations,  but  with  the 
grievance  which  they  pretend  they  have,  to 
wit,  negro  suffrage  and  northern  immigration 
and  freedom  of  opinion,  and  with  the  design 
which  is  to  drive  it  out  and  expel  it. 

The  disorders  in  the  South  are  not  like  the 
disorders  in  many  other  States,  where  there 
always  are  disorders,  the  results  of  private 
malice.  The  slaying  of  men  there,  as  a rule, 
is  not  because  the  murderer  and  the  assassin 
have  any  hostility  or  quarrel  with  the  person 
who  is  the  victim ; but  it  is  one  step  in  the 
progress  of  a systematic  plan  and  an  ulterior 
purpose,  and  that  is  not  to  leave  in  any  of 
those  States  a brave  white  man  who  dares  to 
be  a Republican  or  a colored  man  who  dares 
to  be  a voter.  The  one  is  to  be  expelled  or 
slain  and  the  other  is  to  be  reduced  to  what 
they  consider  to  be  his  normal  condition.  And 
while  it  is  possible  that  there  are  many  people 
in  those  States,  as  I have  no  doubt  there  are, 


who  are  pained  at  the  severity  and  cruelty  of 
these  political  methods,  they,  notwithstanding, 
do  encourage  and  tacitly  consent  to  them  by 
their  inaction.  The  white  people  of  the  South 
(and  my  friend  says  they  are  all  members  of 
the  Democratic  party,  and  in  a large  degree 
they  are)  could  have  peace,  order,  quiet,  lib- 
erty, protection  of  life  and  property  in  every 
one  of  those  States  in  two  weeks  if  they  only 
would.  They  and  their  northern  allies  are 
accessory  to  these  enormous  crimes  which  dis- 
grace them  and  the  nation  by  the  very  fact  that 
they  suffer  them  to  go  cn  without  taking  any 
noble  steps  to  end  them. 

The  great  party  at  the  North  that  sympa- 
thizes with  this  party  at  the  South  is  accessory 
also.  It  has  it  in  its  power  by  uniting  with 
us  in  legislation,  it  has  it  in  its  power  without 
legislation,  by  taking  the  bold  and  open  ground 
that  this  war  is  a finality  and  that  the  constitu- 
tional results  of  it  are  to  be  accepted  in  good 
faith  and  that  the  rights  of  citizens  are  to  be 
protected  in  every  State,  to  give  life  to  those 
whose  life  is  threatened,  to  give  the  peaceable 
possession  of  property  to  those  who  are  de- 
spoiled, to  revive  industry,  to  increase  educa- 
tion, to  promote  happiness.  But,  sir,  the  fear 
is  that  if  they  come  over  to  our  principles  of 
preserving  the  rights  of  all,  traitors,  rebels, 
murderers,  assassins,  whoever  they  may  be,  as 
well  as  of  the  old  friends  of  our  flag,  black 
and  white,  by  the  impartial  execution  of  law, 
of  the  protection  of  private  property,  of  free- 
dom of  opinion,  of  the  expression  of  that  free- 
dom, of  the  free  exercise  of  the  ballot,  it  will 
be  found  that  our  party  is  right  and  their  party 
is  wrong.  There  is  the  trouble,  sir  ; and  there- 
fore it  is  that  every  measure  which  we  pro- 
pose in  order  to  uphold  that,  which  the  people 
and  the  States  have  guarantied  by  the  Con- 
stitution is  assailed  by  all  that  ingenuity  and 
contrivance  can  resort  to  to  put  it  in  an  unfair 
and  improper  attitude  before  the  people;  not 
by  honorable  Senators,  of  course,  v*ith  any 
such  purpose;  but  they  look  at  it  with  per- 
verted eyes.  They  think  that  a provision  to 
punish  crime  is  an  attack  upon  liberty.  They 
think  that  a provision  to  put  down  insurrec- 
tion is  an  enforcement  of  martial  law  against 
the  liberties  of  the  people. 

Mr.  President,  I have  the  impression  that  no 
man  who  has  read  and  observed  the  history  of 
the  last  twenty  years  need  be  afraid  with  this 
book,  the  Constitution  of  his  country,  in  his 
hand,  to  go  forward  either  as  a party  man  or 
as  a statesman — and  in  a large  sense  they  are 
the  same  thing — to  go  forward  in  the  discharge 
of  all  the  constitutional  duties  which  this  Con- 
stitution imposes  upon  him  lest  the  people  will 
not  support  him.  Why,  sir,  it  has  been  said 
that  the  Republican  party — and  I only  speak 
of  it  now  in  the  sense  that  I spoke  of  it  a 
moment  before  as  the  party  of  the  country — 
is  to  be  endangered  in  the  minds  of  the  intel- 
ligent citizens  of  this  country  because  it  uses, 
to  borrow  the  expression  of  one  of  the  oppo- 


nents  of  this  bill,  the  last  measures  of  the  Con- 
stitution to  preserve  life,  liberty,  and  property. 
It  does  not  use  the  last  measures  of  the  Con- 
stitution. I wish  it  did;  but  I hope  this  will 
be  adequate.  The  party  need  not  be  afraid  or 
ashamed,  publicly  and  boldly,  everywhere,  in 
every  hamlet  of  the  land,  to  stand  upon  this 
law  if  it  be  enacted,  and  to  defend  it,  and  to 


challenge  any  man  who  denies  our  right  and 
our  duty  to  pass  laws  of  this  character  and  for 
the  purposes  for  which  we  pass  them,  to  meet 
him.  No,  sir,  the  result  upon  a question  like 
this  of  an  appeal  to  the  people  whose  memories 
are  longer  than  two  years  or  ten  years  will  be, 
in  my  opinion,  a supreme  triumph  to  the  party 
that  bravely  does  its  duty  because  it  is  duty. 


Printed  at  the  Congressional  Globe  Office. 


